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# FILE**l~l** CLt:RKS OFFICE This opinion was filed for record 

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# ..**~·** SUSAN L. CARLSON SUPREME COURT CLERK



### IN THE SUPREME COURT OF THE STATE OF WASHINGTON

WHATCOM COUNTY, a municipal corporation, Respondent, ) ) ) ) ) ERIC HIRST, LAURA LEIGH BRAKKE; ) WENDY HARRIS; DAVID STALHEIM; and ) FUTUREWISE, ) Petitioners, WESTERN WASHINGTON GROWTH MANAGEMENT HEARINGS BOARD, Defendant. ) ) ) ) ) ) ) ) No. 91475-3 En Bane
Filed

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WIGGINS, J.-Wegranted review ofthis challenge to the Western Washington Growth Management Hearings Board's (Board) decision on the validity ofWhatcom County's (County) comprehensive plan and zoning code under the Growth Management Act (GMA or Act), chapter 36.70A RCW. The County argues that the Board's conclusions are based on an erroneous interpretation ofthe law and asks us to hold that the County's comprehensive plan protects the quality and availability of water as required by the GMA.Whatcom County, Hirst (Eric) 

### v: W Wash. Growth Mgmt. Hr'gs Bd., No. 91475-3 We reject the County's arguments. The GMA requires counties to ensure an adequate water supply before granting a building permit or subdivision application. The County merelyfollows the Department of Ecology's "Nooksack Rule"; 1 it assumes there is an adequate supply to provide water for a permit-exemptwell unless Ecology has expressly closed that area to permit-exempt appropriations. This results in the County's granting building permits for houses and subdivisions to be supplied by a permit-exempt well even if the cumulative effect of exempt wells in a watershed reduces the flow in a water course below the minimum instream flow. We therefore hold that the County's comprehensive plan does not satisfy the GMA requirement to protectwater availability and that its remaining arguments are unavailing. We reverse the Court ofAppeals in part and remand to the Board for further proceedings. FACTS I. Factual History This case is the latest step in a series ofdisputes concerning the County's land
use regulations. The history is only summarized here; adetailed history ofthe disputes is contained in our 2009 opinion, Gold Star Resorts, Inc. 

### v: Futurewise, 167 Wn.2d 723, 726-33, 222 P.3d 791 (2009). In Gold Star Resorts, we considered several challenges under the GMA to the County's comprehensive plan-specifically, challenges to provisions regarding limited areas of more intensive rural development and rural densities. We agreed with the Board and directed the County to revise its comprehensive plan in order to conform to the 1997 amendments to the GMA. /d. at 740.

1 The NooksackWater Resource InventoryArea, chapter 173-501 WAC. 2Whatcom County, Hirst (Eric) v. W Wash. Growth Mgmt. Hr'gs Bd., No. 91475-3 In responseto our ruling in GoldStarResortsand a series ofsubsequent board rulings requiring the County to bring its comprehensive plan into compliance with the GMA, the County amended its comprehensive plan and zoning code by adopting Ordinance No. 2012-032. Ordinance No. 2012-032 was an effort to comply with the GMA's requirement that the County's rural element include measures to protect surface and groundwater resources. To accomplish this objective, the ordinance amended the County's Comprehensive Plan Policies 200-2.C and -2.0, and adopted by reference numerous preexisting county regulations. These policies, and the regulations they incorporate, were intended to address the GMA requirements to protect both water availability and water quality. Regarding water availability, the County's development regulations adopt Ecology's regulations-the regulations allow a subdivision orbuilding permit applicant to rely on a private well only when the well site "proposed by the applicant does not fall within the boundaries ofan areawhere [Ecology] has determined by rule thatwater for development does not exist." Whatcom County Code (WCC) 24.11.090(8)(3), .160(0)(3), .170(E)(3) 2

2 Though not related directly to this appeal, the County also took steps to address our decisions in DepartmentofEcologyv. Campbell& Gwinn, LLC, 146 Wn.2d 1, 43 P.3d 4 (2002) and Kittitas County

### v. Eastern Washington Growth Management Hearings Board, 172 Wn.2d 144, 256 P.3d 1193 (2011). Specifically, WCC 21.01.040 requires contiguous parcels of land with the same ownership to be considered as one parcel for the purpose of permit-exempt water appropriations. The County also adopted policies incorporating regulations and programs to protect water quality. These measures include critical area regulations, a storm water management program, sewage regulations, and measures designed to protect the Lake Whatcom watershed. The Board ruled that the measures designed to protect the Lake Whatcom watershed comply with the GMAand these measures are unrelated to this appeal. See Futurewise 

### v. Whatcom County, Nos. 05-2-0013 and 11-2-0010c (W. Wash. Growth Mgmt. Hr'gs Bd. Jan. 23, 2014).
3Whatcom County, Hirst (Eric) 

### v. W Wash. Growth Mgmt. Hr'gs Bd., No. 91475-3 II. Procedural History Eric Hirst, Laura Leigh Brakke, Wendy Harris, David Stalheim, and Futurewise (collectively Hirst)filed a petition for review with the Board, challenging Ordinance No. 2012-032. Relevant to this appeal, Hirst challenged the adequacy of the County's
measures to protect surface and groundwater resources (Policies 2DD.-2.C.1 through .9) and sought a declaration of invalidity. 3 

### A. Board's discussion ofapplicable Jaw The Board held a hearing and issued a final decision and order (FDO). The Board began its decision by citing to the "Applicable Law" as provided by the GMA. As the Board observed, the GMA imposes several requirements on a local government's planning. Relevant here, the GMA requires counties to consider and address water resource issues in land use planning. Kittitas County 

### v. E. Wash. Growth Mgmt. Hr'gs Bd., 172 Wn.2d 144, 178, 256 P.3d 1193 (2011) (counties must regulate to ensure land use is not inconsistent with available water resources). Accordingly, a county's comprehensive plan must '"providefor protection ofthe quality and quantity of groundwater used for public water supplies."' FDO at 13 (emphasis omitted) (quoting RCW 36.70A.070(1)). The GMAalso requires counties to plan for a rural element that "'include[s] measures that

... protect
... surface water and groundwater resources."' 

### /d. at 14 (emphasis omitted) (quoting RCW 36.70A.070(5)(c)(iv)).

3 Hirst also asserted, unsuccessfully, that the County's transportation element was inconsistent with its rural element in violation of RCW 36.70A.070 or RCW 36.70A.130; this issue is not before us on appeal. 4Whatcom County, Hirst (Eric) 

### v. W Wash. Growth Mgmt. Hr'gs Bd., No. 91475-3 The Board also noted that counties must include a rural element in their comprehensive plan that includes "'lands that are not designated for urban growth, agriculture, forest, or mineral resources."'

### /d. at 13 (quoting RCW 36.70A.070(5)). The County's comprehensive plan must ensure that this rural element maintains its ""'[r]ural character'"" by planning its land use and development in a manner that is "'compatible with the use ofthe land by wildlife and for fish and wildlife habitat"' and "'[t]hat are consistent with the protection of natural surface water flows and groundwater and surface water recharge and discharge areas."' /d. (emphasis omitted) (quoting RCW 36.70A.030(15)(d), (g)). In addition to these planning requirements, the Board noted that the GMA provides 13goals to guide the development of a county's comprehensive plan. These include a goal to "'[p]rotect the environment and enhance the state's high quality of life, including air and water quality, and the availability of water."' /d. (emphasis omitted) (quoting RCW 36.70A.020(10)). These goals "are not listed in orderofpriority and shall be used exclusively for the purpose of guiding the development of comprehensive plans and development regulations." RCW 36.70A.020. Read collectively, these goals convey some conceptual guidance for growth management. Richard 

### J. Settle, Washington's Growth Management Revolution Goes to Court, 23 SEATTLE U. L. REV. 5, 8 (1999). The Board interpreted these planning requirements and goals to indicate that patterns of land use and development in rural areas must be consistent with protection of instream flows, groundwater recharge, and fish and wildlife habitat. A County's Comprehensive Plan rural lands provision



### 5Whatcom County, Hirst (Eric) v. W Wash. Growth Mgmt. Hr'gs Bd., No. 91475-3 must include measures governing rural development to protect water resources. FDO at21. The GMA does not define the requirements to plan for the protection ofwater resources found in RCW 36.70A.070. The Act also fails to define how the requirements are to be met. Thus, Hirst argued thatthe County's comprehensive plan must itself protect the availability of water resources, placing the burden on local governments to protect the availability of water, RCW 36.70A.020(10), protect groundwater resources, RCW 36.70A.070(5)(c)(iv), and ensure an adequate water supply when it approves a building permit, RCW 19.27.097(1) and RCW 58.17.110. The Countycountered that it complied with the GMAby drafting a comprehensive plan that incorporates and is consistent with Ecology's regulations in water resource inventory area (WRIA) 1.4 In evaluating this relationship between Ecology's responsibility to protect water pursuant to the Water Resources Act of 1971 (WRA), chapter 90.54 RCW, and the responsibility of local governments to protect water availability and quality pursuant to the GMA, the Board stated that "it is the local government-and not Ecology-that is responsible to make the decision on water adequacy as part of its land use decision, and in particular, with respect to exempt wells." FDO at 23.

4 WRIAs establish instream flows affecting the approval of water rights permits and appropriations for most ofthe state; WRIA 1 is in effect in the County. See ch. 173-501 WAC (the Nooksack Rule). There are now 62 WRIAs designated, described, and subject to the rules promulgated by Ecology. See generally chs. 173-501 to -564 WAC. Though specific rules apply to each ofthese WRIAs, they generally share the purpose of retaining "perennial rivers, streams, and lakes in [the WRIAs] with instream flows and levels necessary to provide for preservation of wildlife, fish, scenic, aesthetic, and other environmental values, and navigational values, as well as recreation and water quality." WAC 173-501-020. 6Whatcom County, Hirst (Eric) v. W Wash. Growth Mgmt. Hr'gs Bd., No. 91475-3 B. Board's findings andconclusions on waterqualityandavailability Hirst presented considerable evidence and the Board found substantial evidence of limits on water availability in rural Whatcom County. See id. at 23-28. These water availability limitations were reflected in findings that a large portion ofthe County is in year-round or seasonally closed watersheds and that most ofthe water in the Nooksack watershed was already legally appropriated. 

### /d. at 23-34. The Board also found that average minimum instream flows in portions of the Nooksack River "are not met an average of 100 days a year." /d. at 24. Despite the limited water availability, 1,652 permit-exempt well applications have been drilled in otherwise closed basins since 1997 and an additional 637 applications were pending in March 2011. /d. Further, the Board noted that the County recognized as early as 1999 that this proliferation of rural, permit-exempt wells was creating '"difficulties for effective water resource management."' /d. (quoting Ex. C-671-D at 49 (1999 Whatcom County Water Resource Plan)). The Board concluded that the County failed to comply with the GMA, specifically with the requirement to protect surface water and groundwater resources pursuant to RCW 36.70A.070(5)(c). The Board's conclusion that the comprehensive plan does not protectwater availability is predicated on the Board's finding that the water supply provisions referenced [by the amended policies] do not require the County to make a determination of the legal availability of groundwater in a basin where instream flows are not being met. FDO at 40. Implicit in this conclusion is the Board's determination that water is not presumptively available for permit-exempt withdrawals in WRIA 1. However, despite concluding that the comprehensive plan does not protect water availability or water
7Whatcom County, Hirst (Eric) 

### v. W Wash. Growth Mgmt. Hr'gs Bd., No. 91475-3 quality, the Board denied Hirst's request for a declaration of invalidity and instead remanded the ordinance to the County to take corrective action. Both parties appealed separately. The County's appeal, focusing exclusivelyon its measures to protect ground and surface water resources, challenged the Board's determination of noncompliance with the GMA. Hirst challenged the Board's decision not to declare the ordinance invalid. The cases were consolidated in Skagit County Superior Court, and the Board issued its certificate of appealability of the FDO, certifying the consolidated appealsfor direct review to the CourtofAppeals. Following the County's appeal of a second order of compliance issued by the Board in April 2014, the Court ofAppeals granted review. Its review consolidated that appeal, the prior consolidated appeals for direct review, and the County's motion for discretionary review ofthe original FDO. The Court ofAppeals reversed the Board, holding that the Board erroneously interpreted and applied the law in holding that the ordinance failed to complywith the GMA. The CourtofAppeals further held thatthe Board engaged in unlawful procedure by taking official notice of and relying on two documents without first providing the County notice and the opportunity to contest the documents. The Court ofAppeals affirmed the Board's decision not to declare the ordinance invalid, holding that the decision was a proper exercise ofthe Board's discretion. 5

5As an initial matter, we reject Hirst's argument that the County's failure to assign errorto the Board's findings of fact by number renders these findings verities on appeal. We affirm the Court ofAppeals on this issue, noting that the Board did not specifically delineate findings of fact by number; instead, it produced a blend of factual findings and legal conclusions. See FDO at 23-44. As the Court ofAppeals properlyfound, "the nature and extent ofthe County's challenges to [the findings of fact] are clear. Thus, this court's review is not in any way
8Whatcom County, Hirst (Eric) v. 

### IN. Wash. Growth Mgmt. Hr'gs Bd., No. 91475-3 We granted review and now reverse the Court ofAppeals in part. ANALYSIS The County argues that the Board's conclusions are based on an erroneous interpretation ofthe law. RCW 34.05.570(3)(d). Though there are several arguments raised in the County's appeal of the Board's decision, the appeal focuses on the subject of water availability. This principal issue concerns the actions local growth management planners and administrators musttake to ensurewater availability under the GMA. Consistent with the Board's determination, Hirst asserts that the GMA requires local governmentsto determinewateravailability as part ofits land use decision. They arguethatthe County's plan does not require the Countyto obtain evidencethatwater is legally available before issuing building permits or approving subdivisions that rely
on permit-exempt appropriations. Thus, Hirst asserts that the comprehensive plan results in waterwithdrawals that impact minimum instream flows. The County responds that its comprehensive plan protects the availability of water because it ensures thatthe Countywill approve a subdivision or building permit application that relies on a permit-exempt well for its water supply only when the proposed well "does not fall within the boundaries of an area where [Ecology] has determined by rule thatwaterfor development does not exist."

## wee 24.11.090(B)(3),
hindered bythe absence offormal assignment oferror. Whatcom Countyv. W Wash. Growth Mgmt. Hr'gs Bd., 186 Wn. App. 32, 44, 344 P.3d 1256, reviewgranted, 183 Wn.2d 1008, 352 P.3d 188 (2015). We may reviewadministrative decisions in spite oftechnical violations when a proper assignment of error is lacking but the nature of the challenge is clear and the challenged finding is set forth in the party's brief. Yakima County v. E. Wash. Growth Mgmt. Hr'gs Bd., 168 Wn. App. 680, 687 n.1, 279 P.3d 434 (2012). Both are present here, and we reach the merits ofthe County's challenges. 9Whatcom County, Hirst (Eric) 

### v. W Wash. Growth Mgmt. Hr'gs Bd., No. 91475-3 .160(0)(3), .170(E)(3). In effect, the County's position is that water is presumptively available-i.e., that "not unavailable" is synonymous with "available." In effect, the County delegates the decision on water availability to Ecology's Nooksack Rule, chapter 173-501 WAC. The Nooksack Rule establishes minimum instream flows for WRIA 1, covering most of the County. However, the County argues-and Ecology agrees-that the closures and minimum flow requirements established bythe rule are not applicable to permit-exemptwells in the County. Thus, the County argues that its comprehensive plan complies with the GMA requirements because water is presumptively available in the County for permit-exempt wells. The County asserts that under the GMA, the proper inquiry is whether its comprehensive plan is consistent with Ecology's regulations designed to protect water and to ensure that water is legally available. We reject these arguments in the context ofthe GMA challenge before us. The GMAplaces an independent responsibilityto ensure water availabilityon counties, not on Ecology. To the extent that there is a conflict between the GMAand the Nooksack Rule, the later-enacted GMA controls. Ecology adopted the Nooksack Rule in 1985, and the rule has not been amended. We have since recognized that "Ecology's understanding of hydraulic continuity has altered over time, as has its use of methods to determine hydraulic continuity and the effect ofgroundwater withdrawals on surface waters." Postema v. Pollution Control Hr'gs Bd., 142 Wn.2d 68, 76, 11 P.3d 726 (2000). When Ecology adopted the minimum instream flow rules, such as those contained within the Nooksack Rule, it "did not believe thatwithdrawals from deep confined aquifers would 10Whatcom County, Hirst (Eric) v. W Wash. Growth Mgmt. Hr'gs Bd., No. 91475-3 have any impact on stream flows." 

### /d. at 88. However, we now recognize that groundwater withdrawals can have significant impacts on surface water flows, and Ecology must considerthis effectwhen issuing permits for groundwaterappropriation. 

### /d. at 80-81. We hold that the same standard applies to counties when issuing building permits and subdivision approvals. We have been protective of minimum instream flow rules and have rejected appropriations that interfere with senior instream flows. E.g., Swinomish Indian Tribal Cmty. v: Dep't ofEcology, 178 Wn.2d 571, 598, 311 P.3d 6 (2013); Foster v. Dep't ofEcology, 184 Wn.2d 465, 362 P.3d 959 (2015). Our jurisprudence and well-established principles of statutory interpretation lead us to affirm the Board's decision that the County's comprehensive plan does not satisfy the GMA requirement to protect water availability. I. Standard of Review The Washington Administrative Procedure Act, chapter 34.05 RCW, governs judicial review of challenges to board actions. Quadrant Corp. v: Cent. Puget Sound Growth Mgmt. Hr'gs Bd., 154Wn.2d 224,233, 110 P.3d 1132 (2005). Though county actions are presumed compliant, this deference "is neither unlimited nor does it approximate a rubber stamp." Swinomish Indian Tribal Cmty. v: W Wash. Growth Mgmt. Hr'gs Bd., 161 Wn.2d 415,435 n.8, 166 P.3d 1198 (2007). Instead, deference to counties remains "bounded

... by the goals and requirements ofthe GMA." King Countyv: Cent. Puget Sound Growth Mgmt. Hr'gs Bd., 142 Wn.2d 543, 561, 14 P.3d 133 (2000). Further, we do not afford counties any deference when it comes to interpreting the GMA. Kittitas County, 172 Wn.2d at 156 (citing Lewis County v. W
11Whatcom County, Hirst (Eric) 

### v. W Wash. Growth Mgmt. Hr'gs Bd., No. 91475-3 Wash. Growth Mgmt. Hr'gs Bd., 157Wn2d488,498,139 P.3d 1096 (2006). On appeal to this court, the County retains the burden ofestablishing thatthe Board's decision is basedon an erroneous interpretation ofthe law. King County, 142 Wn.2d at 553. The Board mustfind compliance "unless it determines thatthe action bythe state agency, county, or city is clearly erroneous in view ofthe entire record before the board and in light of the goals and requirements of [the GMA]." RCW 36.70A.320(1 ), (3). To find an action clearly erroneous, the Board must be "'left with the firm and definite conviction that a mistake has been committed."' King County, 142 Wn.2d at 552 (quoting Dep't ofEcology

### v. Pub. Uti/. Oist. 1 ofJefferson County, 121 Wn.2d 179, 201, 849 P.2d 646 (1993)). We review the Board's legal conclusions de novo, giving substantial weight to the Board's interpretation ofthe GMA. 

### /d. at 553. We review questions ofstatutory interpretation de novo. Ass'n ofWash. Spirits 

### &Wine Distribs. v. Wash. State LiquorControlBd., 182Wn.2d 342, 350, 340 P.3d 849 (2015). Ourfundamental purpose in statutory interpretation is to ascertain and discern the legislature's intent. Dep't ofEcology

### v: Campbell & Gwinn, LLC, 146 Wn.2d 1, 9, 43 P.3d 4 (2002). The court discerns legislative intentfrom the plain language enacted by the legislature, considering the text ofthe provision in question, the context ofthe statute in which the provision is found, related provisions, amendments to the provision, and the statutory scheme as a whole. /d. at 9-19. These rules of statutory interpretation also apply to administrative rules and regulations. See Overlake Hasp. Ass'n v. Dep'tofHealth, 170 Wn.2d 43, 51-52, 239 P.3d 1095 (201 0). The dissent ignores these important rules of statutory interpretation, and focuses solely on a single statute in isolation from its relevant GMAstatutory scheme.
12Whatcom County, Hirst (Eric) 

### v. W Wash. Growth Mgmt. Hr'gs Bd., No. 91475-3 Dissent at 2-6 (discussing RCW 19.27.097). As a result, the dissent reaches a conclusion about the meaning ofthis statute that is at odds with ourjurisprudence on statutory interpretation and with the GMA's larger structure, overarching goals, and requirements.

II. The Board Correctly Ruled That the County's Rural Element Fails To Comply with the RequirementTo Protect WaterAvailability We reverse the Court ofAppeals and hold that the Board properly interpreted and applied the law in concluding that the County's comprehensive plan fails to provide for the protection of water resources. The Board's decision properly placed the burden on the County to ensure the availability ofwater under the GMA pursuant to the legislative intent, relevant statutory schemes when read in context and as a whole, and this court's jurisprudence considering groundwater appropriations that impact minimum flows. A. Washington's historyofwaterregulation We hold that the County's comprehensive plan does not protect water availability because it allows permit-exempt appropriations to impede minimum flows. In reaching this holding, we note that minimum flows are exactly that: flows 

### or levels "to protect instream flows necessary for fish and other wildlife, recreation and aesthetic purposes, and water quality." Swinomish Indian Tribal Cmty., 178 Wn.2d at 592. By statute, the only exception to these flows is found at RCW 90.54.020(3) and, though this case does not implicate this exception, we have been extremely protective ofwithdrawals pursuant to that statute. See id.; Foster, 184 Wn.2d 465. As scientific understanding of water resources has increased, so too have Washington's

13Whatcom County, Hirst (Eric) v. W. Wash. Growth Mgmt. Hr'gs Bd., No. 91475-3 restrictions on the availability of water. Washington's original water code, chapter 90.03 RCW, was enacted in 1917 and regulated only surface water appropriations. In 1945, the legislature passed the groundwater code to subject the withdrawal of groundwater to the permitting process then applicable to surface water rights in order to protect senior water rights and the public welfare. See RCW 90.44.020; RCW 90.03.290(3). Specified withdrawals were exempt from these permit requirements: [A]ny withdrawal

...for single or group domestic uses in an amount not exceeding five thousand gallons a day

... is and shall be exempt from the provisions of this section, but, to the extent that it is regularly used beneficially, shall be entitled to a right equal to that established by a permit issued under the provisions ofthis chapter. RCW 90.44.050. These permit-exempt withdrawals are appropriations. Swinomish Indian Tribal Cmty., 178 Wn.2d at 588. Recognizing that any withdrawal of water impacts the total availability ofwater, we have held that an appropriator's right to use waterfrom a permit-exempt withdrawal is subject to seniorwater rights, including the minimum flows established by Ecology. See Campbell 

### & Gwinn, 146 Wn.2d at 16; Swinomish Indian Tribal Cmty., 178 Wn.2d at 598. These exemptions existed in part because the legislature's goal in 1945 was to encourage the development and settlement of rural family farms drawing between 200 and 1,500 gallons ofwater per day. Five Corners Family Farmers 

### v. State, 173 Wn.2d 296, 321-22, 268 P.3d 892 (2011) (Wiggins, J., dissenting) (citing Kara Dunn, Got Water? Limiting Washington's Stockwatering Exemption to Five Thousand Gallons Per Day, 83 WASH. L. REV. 249, 258 (2008)). These legislative priorities continued to change as Washington's population increased and the limitations on its natural resources became more apparent. See 

### 14Whatcom County, Hirst (Eric) v. W Wash. Growth Mgmt. Hr'gs Bd., No. 91475-3 Swinomish Indian Tribal Cmty., 178 Wn.2d at 592 ("Growing, competing demands for water led to a number of new laws over time, and among these are acts and statutes designed tofurtherthe goal ofretaining sufficientwater in streams and lakesto sustain fish and wildlife, provide recreational and navigational opportunities, preserve scenic and aesthetic values, and ensure water quality."). "In 1955, the legislature declared the policy of the State to be that sufficient water flow be maintained in streams to support fish populations and authorized rejection of water right applications if these flows would be impaired." 

### /d. (citing LAWS OF 1955, ch. 12, 

### § 75.20.050 (codified as amended at RCW 77.57.020)). The legislature continued to enact measures to protect the flows necessaryfor fish, wildlife, and water quality with the minimum water flows and levels act of 1969, chapter 90.22 RCW. In part, this act authorized Ecology to "establish minimum water flows

... for the purposes of protecting fish, game, birds, or other wildlife resources, or recreational or aesthetic values of said public waters whenever it appears to be in the public interest." RCW 90.22.01 0. Once established, minimum flows are like any other appropriativewater right in that they are subject to the rule of"first in time is the first in right." Swinomish Indian Tribal Cmty., 178 Wn.2d at 591. The WRA was intended to ensure adequate water to "meet the needs of the state's growing population" while concurrently maintaining "instream resources and values." RCW 90.54.01 0(1 )(a). To balance growth and stream maintenance, the WRA directed Ecology to allocate waters in a way that maximizes the net benefits to the people ofthe state and to retain "base flows necessary to provide for preservation of wildlife, fish, scenic, aesthetic and other environmental values, and navigational 15Whatcom County, Hirst (Eric) 

### v. W Wash. Growth Mgmt. Hr'gs Bd., No. 91475-3 values." RCW 90.54.020(3)(a). Included in this mandate is the authority to establish minimum water flows and water levels (RCW 90.03.247 and RCW 90.22.010), base flows, and WRIAs. RCW 90.54.040. At this time, the legislature also made Ecology the primary administrator of chapter 90.03 RCW, concerning surface waters, and of chapter 90.44 RCW, concerning groundwater. See ch. 43.27A RCW. By 1979, however, "public policy had dramatically changed from what had been true when the water code was first enacted." Swinomish Indian Tribal Cmty., 178 Wn.2d at 595. Replacing the 1917 policies encouraging "maximum diversion ofwater"
were the modern policies of "[o]btaining maximum benefits, prudent management of the state's water resources with input of interested entities, preservation of water within the streams and lakes as necessary for instream and natural values, and avoidance ofwasteful practices." /d. at 595-96. In order to obtain the maximum benefit from the state's water resources, the legislaturetasked Ecologywith developing WRIAs. RCW 90.54.040(1 ), (2). Beginning in 1985, Ecology developed the Nooksack Rule (WRIA 1), the first of 62 WRIAs designated, described, and subject to rules promulgated by Ecology. See generally chs. 173-501 to 173-564 WAC. Though specific rules apply to each ofthese WRIAs,
see id., they generally share the purpose "to retain perennial rivers, streams, and lakes in [the WRIAs] with instream flows and levels necessary to provide for preservation of wildlife, fish, scenic, aesthetic, and other environmental values, and navigational values, as well as recreation and water quality." WAC 173-501-020; see also RCW 90.54.020(3).

16Whatcom County, Hirst (Eric) v. W Wash. Growth Mgmt. Hr'gs Bd., No. 91475-3 In 1990 and 1991, the legislature addressed issues related to water use when it enacted the GMA '"in response to public concerns about rapid population growth and increasing development pressures in the state."' King County, 142 Wn.2d at 546 (quoting Alan D. Copsey, Including BestAvailable Science in the Designation and Protection ofCriticalAreas Underthe Growth ManagementAct, 23 SEATTLE U. L. REV. 97 (1999)). This legislation followed "decades of lax and optional land use regulations." Quadrant Corp., 154 Wn.2d at 232. Through the GMA, the legislature sought to minimize "uncoordinated and unplanned growth," which it found to "pose a threatto the environment, sustainable economic development, and the health, safety, and high quality of life enjoyed by residents ofthis state." RCW 36.70A.010. Importantly, the GMAconcentrates future growth into urban growth areas. See RCW 36.70A.11 0. Through this requirement, "theAct seeks to minimize intrusion into
resource lands and critical areas, preserve large tracts of open space easily accessible to urban residents, foster a sense of spatial identity by separating communities with great expanses of sparsely populated rural land, and induce sufficient development density to be efficiently served by mass transportation and other publicfacilities." Settle, supra, 23 SEATTLE U. L. REV. at 12. Put anotherway, the Act concentrates development in cities and discourages development and will "attempt to wean Washingtonians from the sprawling, low-density development patterns that have prevailed throughout the nation since World War II." 

### /d. at 12-13. The GMA reinforces the conservation goals and priorities first established in the WRA by requiring local governments to plan for the protection of their local environment. The GMA requires counties to adopt a comprehensive plan and 17Whatcom County, Hirst (Eric) 

### v. W Wash. Growth Mgmt. Hr'gs Bd., No. 91475-3 development regulations consistent with the comprehensive plan. See RCW 36.70A.040. Among other requirements, comprehensive plans must include a rural element that harmonizes the Act's goals with local circumstances and also protects the rural characteristics of the area. See RCW 36.70A.070(5)(a), (c). Protecting the rural character of the area requires planning to protect surface and groundwater
resources. RCW 36.70A.070(5)(c)(iv). B. The GMA requires counties to have a comprehensive plan thatprotects surface andgroundwaterresources We hold that the Board properly concluded that the GMA requires counties to make determinations of water availability. The language placing this burden on the county or local government is clear, consistent, and unambiguous throughout theAct. We begin with the plain language ofthe statute. Ass'n ofWash. Spirits 

### & Wine Distribs., 182 Wn.2d at 350. When the language is clear, we look only to the wording ofthe statute. W Telepage, Inc. 

### v. CityofTacoma Dep't ofFin., 140 Wn.2d 599, 609, 998 P.2d 884 (2000). The language of chapter 36.70A RCW, entitled "Growth Management-Planning by Selected Counties and Cities," is clear. RCW 36.70A.040, "Who must plan-Summary of Requirements," provides in part: (1) Each county [subject to the Act] shall conform with all of the requirements of [chapter 36.70A RCW]. Subsection .040(3) outlines the duties of the county's legislative authority and each city located within the county to conform to the Act's mandates, starting with "adopt[ing] a countywide planning policy under RCW 36.70A.210," and then places specific duties on the county. This language clearly requires the county legislative authority-and not Ecology-to take planning action, including adopting a 

### 18Whatcom County, Hirst (Eric) 

### v. W Wash. Growth Mgmt. Hr'gs Bd., No. 91475-3 comprehensive plan. Language placing the burden on counties to take action is consistent throughout the GMA. "Counties shall include a rural element" in their comprehensive plans. RCW 36.70A.070(5). These rural elements must protect the rural character of the area "as established by the county." RCW 36.70A.070(5)(c). The GMAalso places the onus on counties to ensurethattheir development regulations and comprehensive plans comply with the GMA. RCW 36.70A.130(1)(a) ("a county or city shall

... ensure the plan and regulations comply with the requirements ofthis chapter."). The GMA requires counties to consider and address water resource issues in land use planning. Specifically, a county's comprehensive plan must "provide for protection ofthe quality and quantity of groundwater used for public water supplies." RCW 36.70A.070(1). The GMA also requires counties to plan for a rural element that "include[s] measures that

... protect
...surface water and groundwater resources." RCW 36.70A.070(5)(c)(iv). Read as a whole, it is clear that the GMA holds counties "responsible for land use decisions that affect groundwater resources." Kittitas County, 172 Wn.2d at 180. 

### C. The County's comprehensive plan conflicts with the GMA The GMA requires that an applicant for a building permit for a single family residence or a development must produce proof that water is both legally available and actually available. But the County does not require any showing that water is available for a building permit when the applicant is relying on permit-exempt water appropriation. This failure by the County is the crux ofthis case. The GMA places specific requirements on local governments when approving 19Whatcom County, Hirst (Eric) 

### v. W Wash. Growth Mgmt. Hr'gs Bd., No. 91475-3 building permits or authorizing subdivisions. See RCW 19.27.097(1); RCW 58.17.110(2). 6 In order to comply with the GMA, counties must receive sufficient evidence of an adequate water supply from applicants for building permits or subdivisions before the county may authorize development. RCW 19.27.097(1) provides in relevant part: Each applicant for a building permit of a building necessitating potable water shall provide evidence of an adequate water supply for the intended use ofthe building. In addition, RCW 58.17.110(2} provides: A proposed subdivision and dedication shall not be approved unless the city, town, or county legislative body makes written findings that: (a) Appropriate provisions are made for

... potable water supplies

.... Through these statutes, the GMA requires counties to assure that water is both factually and legally available. Kittitas County, 172 Wn.2d at 179-80. The dissent focuses solely on the text of RCW 19.27.097 and concludes that "adequate," as the term is used in the statute, requires a permit applicant to demonstrate that water is merely factually available. This narrow interpretation of "adequate" ignores our discussion in Kittitas Countyand fails to appreciate the larger GMAscheme. In Kittitas County, we rejected the argumentthatthe GMArequired only

6 The dissent places undue significance on RCW 19.27.097's location within the state building code. Dissent at 3-4. Though contained within Titles 19 and 58 RCW, both RCW 19.27.097 and 58.17.110(2) are part ofthe GMA. The legislature enacted the GMAin 1990 and amended the GMA in 1991. RCW 19.27.097 was in the 1990 act and amended in 1991. See LAws OF 1990, 1st Ex. Sess., ch. 17, §63; LAWS OF 1991, Spec. Sess., ch. 32, §28. RCW 58.17.110(2) was amended by the 1990 act. See LAWS OF 1990, ch. 17, §52. While the dissent correctly notes that RCW 19.27.097 contains separate requirements for GMAand non-GMA counties, this does not give this court grounds to ignore the rest of the GMA. We must read RCW 19.27.097 in conjunction with the larger GMA statutory scheme of which it is a part. See Campbell & Gwinn, 146 Wn.2d at 9-11. 20Whatcom County, Hirst (Eric) v. W Wash. Growth Mgmt. Hr'gs Bd., No. 91475-3

a showing offactual availability in order to obtain a building permit from the county. 

### /d. Instead, we held that the GMA requires counties to "plan for land use in a manner that is consistent with the laws regarding protection of water resources." 

### /d. at 180. Werewe to read the GMA to require counties to assure merelythat "water is physically underground," it would allow the county to condone the evasion of existing water rights, contrary to law. 

### /d. Further, because the dissentfails to read this statute in conjunction with related provisions within the GMA, the dissent ignores the responsibility the GMA places on counties to protect groundwater resources under RCW 36.70A.070. When read as a whole, the GMAplaces the burden on counties to protect groundwater resources, and requires counties to assure that water is both factually and legally available before issuing building permits. 7 Here, the County's existing comprehensive plan does not require the Countyto make a determination ofwater availability. Instead, the comprehensive plan relies on determinations of water availability provided by Ecology's Nooksack Rule, chapter 173-501 WAC. The Nooksack Rule establishes minimum flows for 48 basins in WRIA 1, covering the County. WAC 173-501-030. Most ofthe 48 basins are closed, and over half of the basins are closed year-round because they are already overdrawn. See WAC 173-501-040; see a/so BECKY PETERSON ET AL., 2010 WRIA 1 STATE OF THE

7 The dissent notes that this interpretation of RCW 19.27.097 may result in differences between GMA and non-GMA counties in the level of protection for water rights holders. However, the legislature has created a distinction between GMA counties and non-GMA counties, and the resulting differences in resource management between those counties is a natural consequence ofthis legislation. 21Whatcom County, Hirst (Eric) 

### v. W Wash. Growth Mgmt. Hr'gs Bd., No. 91475-3 WATERSHED REPORT 10 (2011). However, the Nooksack Rule establishes two tiers of "closed" basins in WRIA 1: basins closed to all appropriations except permit-exempt appropriations and basins closed to all appropriations including permit-exempt appropriations. See WAC 173-501-040(1), -070(2). Despite significant evidence that minimum flows are not met in rural Whatcom County, Whatcom Creek is the only basin-out of 48 basins in WRIA 1-closed to permit-exempt appropriations. WAC 173-501-070. Thus, the Nooksack Rule does not restrict permit-exempt wells from appropriating water in otherwise closed basins. The County interprets the Nooksack Rule to mean that water is actually available for permit-exempt appropriations in otherwise closed basins, even if the basin is closed because thewatercourses fall below minimum flows during all or parts of the year. The Board correctly rejected this interpretation. The Board found that despite substantial evidence of impaired instream flows, the County continues to authorize development relying on permit-exempt groundwater appropriations in otherwise closed basins. FDO at 42. The County's deference to the Nooksack Rule
as asubstitutefor an actual determination ofwater availability expressly allows permitexempt appropriations to interfere with established minimum flows because the Nooksack Rule exempts these appropriations from minimum flow requirements. See WAC 173-501-030(3), -060, -070(2). The result is an unchecked reduction ofminimum flows unless and until Ecology closes a basin to all future appropriations. See WAC 173-501-070(2). In ruling that the County's comprehensive plan does not provide for the protection of water availability, the Board specifically found amended rural element
22Whatcom County, Hirst (Eric) 

### v. W Wash. Growth Mgmt. Hr'gs Bd., No. 91475-3 policies 2DD-2.C.6 and -2.C.7 noncompliantwith the GMA. These policies incorporate provisions ofthe WCC. 8 In turn, the incorporated provisions ofthe WCC defer to the Nooksack Rule by excluding the permit-exempt groundwater appropriations from the need to demonstratewater availability and by authorizing permit-exempt groundwater appropriations in otherwise closed basins. SeeWCC 24.11.090(B)(3) (the directorwill approve an application for a permit-exempt water appropriation only if the appropriation "does not fall within the boundaries of an area where [Ecology] has determined by rule that water for development does not exist"), .160(0)(3) (same), .170(E)(3) (same). These policies are contrary to the requirements of the GMA. As noted, amended rural element policies 2DD-2.C.6 and -2.C.7 specifically incorporate

## wee 21.04.090, 

## wee 21.05.080(3), and 

## wee 24.11.050, which are 

## wee provisions governing public and private water systems. Each of these ordinances requires an applicant for a public or private water system to make a showing ofwater availability to withdraw morethan atotal of5,000 gallons per day. But as the Board noted at page

8 Whatcom County Comprehensive Plan policy 2DD-2.C.6: Limit water withdrawals resulting from land division through the standards in the following Whatcom County Land Division regulations, adopted herein by reference: a. WCC 21.04.090 Water supply, Short Subdivisions b. WCC 21.05.080 Water supply, Preliminary Long Subdivisions. Whatcom County Comprehensive Plan policy 2DD-2.C.7: Regulate groundwaterwithdrawals by requiring purveyors of publicwater systems and private water system applicants to comply with Washington State Department of Ecology ground water requirements per WCC 24.11.050, adopted herein by reference. 23Whatcom County, Hirst (Eric) v. W. Wash. Growth Mgmt. Hr'gs Bd., No. 91475-3 42 ofthe FDO, "ultimately, a building permit for a private single-residential well does not require the applicant to demonstrate that groundwater withdrawal will not impair surface flows." Indeed, the County's rules for approving permit-exempt applications authorize groundwater appropriations in otherwise closed basins. The County asserts that its comprehensive plan protects surface flows because it provides that the director will approve an application for a permit-exempt water appropriation only if the appropriation "does not fall within the boundaries of an area where [Ecology] has determined by rule that waterfor development does not exist." WCC 24.11.090(B)(3), .160(0)(3), .170(E)(3). In effect, these ordinances provide thatthe County determines water availability by referencing the minimum flows and basin closures established by the Nooksack Rule. The problem is that the Nooksack Rule-including the minimum flows and closed basins established by the rule-does not regulate or otherwise restrict permit-exempt uses. See WAC 173-501-070(2). The Countythus reasons that water is always available for permit-exempt appropriations. In reality, the County's incorporation of the Nooksack Rule authorizes permit-exempt groundwater appropriations that draw from minimum flows and otherwise closed basins, setting up a conflict with the County's obligation to protect water availability under the GMA. D. The County'splan fails to protect the availabilityofwaterresources Recognizing the conflict between the GMA and the Nooksack Rule, the Board properly held the County to the requirements imposed by the GMA. The Board ruled that policy 2DD-2.C.7 does not comply with the requirements of the GMA because underthe policy, "a building permitfor a private single-residential well does not require
24Whatcom County, Hirst (Eric) 

### v. W Wash. Growth Mgmt. Hr'gs Bd., No. 91475-3 the applicant to demonstrate that groundwater withdrawal will not impair surface flows." FDO at 42. This violates the requirement in RCW 19.27.097(1) that applicants "for a building permit of a building necessitating potable water shall provide evidence of an adequate water supply." See also RCW 58.17.110(2) (proposed subdivisions shall not beapproved without evidence ofadequate potablewater). Further, the Board found that policy 2DD-2.C.7 "fails to limit rural development to protect ground or surface waters with respect to permit-exempt wells as required by RCW 36.70A.070(5)(c)(iv)." FDO at42. As discussed in Section II.B of this opinion, supra, the County's policies incorporate 

## wee provisions that do not allow water to be withdrawn from "an area where [Ecology] has determined by rule that water for development does not exist." WCC 24.11.090(B)(3), .160(0)(3), .170(E)(3). As counsel conceded at oral argument, these ordinancesfurther provide that an application for a permit-exemptappropriation will be approved without any analysis ofthat withdrawal's impact on instream flows. 9 The Board found thatthese provisions result in water withdrawals from closed basins and senior instream flows-flows that the record indicated drop below the minimum levels 100 days out of the year. The Board properly held that this conflicts with the requirement placed on counties to protect water availability under the GMA, as well
as our holding in Postema, 142 Wn.2d 68. 10

9 Wash. Supreme Court oral argument, Whatcom County v. Hirst, No. 91475-3 (Oct. 20, 2015), at 3 min., 25 sec., audio recording byTVW, Washington State's PublicAffairs Network, http://www.tvw.org. 10 The dissent relies on a 1992 attorney general opinion (AGO) to support its conclusion that RCW 19.27.097 does not require proof ofthe legal availability ofwater. Dissent at 10-12. We do not read the AGO to support this conclusion. Rather, the AGO recognizes that in order to
25Whatcom County, Hirst (Eric) v. W Wash. Growth Mgmt. Hr'gs Bd., No. 91475-3 The County's adoption ofthe Nooksack Rule with its presumption thatwater is available for permit-exempt appropriations fails to satisfythe protective purposes and requirements of the GMA. As Ecology acknowledges in its amicus briefing, the Nooksack Rule is "[b]ased on the scientific understanding [in 1985, when] Ecology determined that only limited instances would occur in which groundwaterwithdrawals might impair instream flows." Ecology's Amicus Curiae Br. at 19-20. But "Ecology's understanding of hydraulic continuity has altered over time," and the effects of groundwater withdrawals on surface waters are well known. Postema, 142 Wn.2d at 76. Indeed, the County knew in 1999thatthe proliferation ofrural, permit-exemptwells
was creating '"difficulties for effective water resource management."' FDO at 24 (quoting Ex. C-671-D at 49). The County cannot reasonably rely on this regulation to satisfy its responsibility underthe GMAto protect water availability. Indeed, the County's reliance on the Nooksack Rule turns the GMA goal of directing growth to urban areas upside down. The County's comprehensive plan allows the unchecked growth of single domestic dwellings relying on permit-exempt

assure "adequate" water supply, a local county requires proof of both sufficient quantity and quality before issuing a building permit. 1992 Op. Att'y Gen. No. 17, at 7. Additionally, the AGO recognizes due to our state's "first in time, first in right" water priority system, a local building authority might have to require morethan a right to withdraw groundwaterby Ecology permit or exemption in order to meetthe "adequacy" requirement, and might require proof of legal availability. See id. at 11 n.5. However, the AGO fails to fully consider counties' responsibilities under the GMA when permit-exempt wells impede minimum flows. While we give opinions of the attorney general considerable weight, they are not controlling on this court. Wash. Fed'n ofState Emps. v. Office ofFin. Mgmt., 121 Wn.2d 152, 164, 849 P.2d 1201 (1993). Further, we give less deference to such opinions when they involve issues of statutory interpretation. /d. While the AGO is not inconsistent with our decision today, we decline to give it weight or consideration here because we find it of limited application to the specific facts of this case, and because it fails to interpret RCW 19.27.097 within the larger GMA statutory scheme. 26Whatcom County, Hirst (Eric) 

### v. W Wash. Growth Mgmt. Hr'gs Bd., No. 91475-3 wells in rural areas; this is precisely the "uncoordinated and unplanned growth" that the legislature found to "pose a threat to the environment, sustainable economic development, and the health, safety, and high quality of life enjoyed by residents of this state." RCW 36.70A.010. The County argues that placing responsibility for protecting water resources on local governments transfers Ecology's statutory responsibility to administer chapter 90.44 RCW to the counties. They are wrong under our description of the proper division of authority set forth in Kittitas County: "Ecology is responsible for appropriation of groundwater by permit

... , the County is responsible for land use decisions that affect groundwater resources." 172 Wn.2d at 180. Rather than address the language of the GMA, the County asserts that the proper inquiry is whether its comprehensive plan is consistent with Ecology's regulations designed to protect water and to ensure thatwater is legally available. For support, the County cites numerous provisions describing the GMA as a cooperative endeavor between local governments and state agencies with subject matter expertise. See, e.g., RCW 90.54.130 (Ecology may provide local governments and state agencies with advisory recommendations to assist the counties in protecting water resources). Notwithstanding the cooperative approach envisioned by the Act, the GMA clearly places sole responsibility for land use decisions affecting groundwater
resources on local governments. Counties are authorized by statute to grant or deny building permits, and the legislature has imposed on the counties the responsibility of protecting the availability of water, RCW 36.70A.020(10), protecting groundwater 

### 27Whatcom County, Hirst (Eric) 

### v. W Wash. Growth Mgmt. Hr'gs Bd., No. 91475-3 resources, RCW 36.70A.070(5)(c)(iv), and ensuring an adequate supply of water when it approves a building permit. RCW 19.27.097(1); RCW 58.17.11 0. In contrast, the legislature recognized that Ecology plays an advisory role to counties making land use decisions by providing counties with model regulations and assistance. RCW 90.54.130; Kittitas County, 172 Wn.2d at 180. In counties required to plan pursuant to the GMA, the legislature recognized that Ecology's permitting authority could provide evidence ofthe availability ofwater (RCW 19.27.097(1)). And in counties that are not required to plan pursuant to the GMA, the legislature gave Ecology authority to coordinate with the Department of Health to determine whether an applicant must demonstrate the legal availability ofwater (RCW 19.27.097(2)). In addition, Ecology may provide local governments with advisory recommendations to assist those governments in protecting water resources. RCW 90.54.130. The legislature further recognized Ecology's administrative role in the GMA, stating that a county's land use regulations "should be consistent with

... instream flow rules" promulgated by Ecology. WAC 365-196-825(3). Notably, none of these statutes authorize local governments to delegate their GMA planning responsibilities to Ecology. Further, interpreting "assistance" to merely require counties to conform to existing regulations would render the GMA's water protection requirements superfluous. The legislature adopted the GMA in 1991, 20 years after the WRA and six years after Ecology promulgated the Nooksack Rule. As observed throughout this opinion, the Act places numerous requirements on local governments to protect the availability of water. See RCW 36.70A.070(1), (5)(c)(iv); see also RCW 19.27.097; 28Whatcom County, Hirst (Eric) 

### v. W. Wash. Growth Mgmt. Hr'gs Bd., No. 91475-3 RCW 58.17.110. "Statutes must be interpreted and construed so that all the language is given effect, with no portion rendered meaningless of superfluous." G-P Gypsum Corp. 

### v. Dep't of Revenue, 169 Wn.2d 304, 309, 237 P.3d 256 (2010); see also Tunstall

### v. Bergeson, 141 Wn.2d 201, 211, 5 P.3d 691 (2000) ('To resolve apparent conflicts between statutes, courts generally give preference to the more specific and
more recently enacted statute."). The GMA provisions would be superfluous if the County's only obligation was to defer to Ecology's water regulations. TheCountyspecificallycontrasts its cooperative effortswith the actions at issue in Kittitas County, where we affirmed the Board's finding of noncompliance in part because the policies in that case effectively evaded compliance with Ecology's water permitting requirements. See Kittitas County, 172 Wn.2d at 180-81. Asserting that its plan is entirely consistent with Ecology's regulations, the County urges us to find that its comprehensive plan is GMAcompliant. This argument is incongruous: the fact that the County's provisions are wholly consistent with Ecology's regulations does not, by itself, render them consistent with the GMA's requirements. We require counties "to plan for land use in a manner that is consistent with the laws regarding protection of water resources and establishing a permitting process." /d. at 180; see also WAC 365-196-825(3). However, nothing in Kittitas Countyor in the GMAsuggests that consistency with Ecology's regulations is sufficient for GMA compliance. See 172 Wn.2d at 180-81. This argument rests on a logical fallacy. The GMArequires counties to have a comprehensive plan that protects surface and groundwater resources, and it requires applicants seeking approval for building permits or subdivision developments to provide that county with evidence of
29Whatcom County, Hirst (Eric) v. W Wash. Growth Mgmt. Hr'gs Bd., No. 91475-3

an adequate water supplies as well as potable water supplies, among other provisions. See RCW 36.70A.070(5)(C)(iv); RCW 19.27.097(1 ); RCW 58.17.110. The Board correctly found that the County's plan does not satisfy these requirements. It is true that the GMA places significant responsibility on local growth management planners and administrators to work with existing laws and regulations "toward producing a single harmonious body of law." WAC 365-196-700(2). However, the scope of this responsibility does not support a dilution of the Act's purpose. Recognizing the challenge this presents to local governments, the legislature directed the Department of Commerce to provide technical assistance to local governments. See RCW 36.70A.190. Additionally, Ecology was authorized to provide land use management advisory recommendations to state agencies and local governments in furtherance of protecting this state's water resources. RCW 90.54.130. This cooperative approach is designed to give local governments the tools they need to make informed decisions toward achieving harmony under the GMA. However, the cooperative approach does not allow counties to disregard evidence of minimum flow impairments in reliance on an outdated regulation. The GMA is a mandate to government at all levels-municipalities, counties, regional authorities, special purpose districts, and state agencies-to engage in coordinated planning and cooperative implementation. WAC 365-196-700(5). In allocating responsibilities to achieve these policy goals, the legislature placed the responsibility to plan for the protection ofwater resources on county governments. See Kittitas County, 172 Wn.2d at 179.

30Whatcom County, Hirst (Eric) 

### v. W Wash. Growth Mgmt. Hr'gs Bd., No. 91475-3 E. The Countyplan is inconsistent with ourminimum flowsjurisprudence In addition to the deficiencies in the County's comprehensive plan under the GMA, the Board properly ruled that the plan is inconsistent with our decisions protecting closed basins and minimum flows from groundwater appropriations. There is no question that a permit-exempt well may not infringe on an earlier-established right to water under the doctrine of prior appropriation. See Campbell 

### & Gwinn, 146 Wn.2d at 16. We reiterated this point in Swinomish Indian Tribal Community, recognizing that an appropriator's right to use water from a permit-exempt well is subjectto rights with priority in time, including minimum flows. 178 Wn.2d at 598. The GMA protects these senior water rights by requiring local governments to determine that applicants for building permits or subdivision developments have demonstrated that an adequate water supply is legally available before authorizing approval. RCW 19.27.097(1); RCW 58.17.110. Here, the Board specifically found thatthe "water supply provisions referenced

. do not require the County to make a determination of the legal availability of groundwater," with the result that the County's ordinance directly conflicts with the standard announced in Postema. FDO at 40. In Postema, we held that a minimum flow, once established by Ecology, is an existing water right that may not be impaired by subsequent groundwater withdrawals. 142 Wn.2d at 81. "Accordingly, when Ecology determines whetherto issue a permitfor appropriation ofpublic groundwater, Ecology must consider the interrelationship of the groundwater with surface waters, and must determine whether surface water rights would be impaired or affected by groundwater withdrawals." /d. at 80-81. "[W]here there is hydraulic continuity and 31Whatcom County, Hirst (Eric) 

### v. W Wash. Growth Mgmt. Hr'gs Bd., No. 91475-3 withdrawal of groundwater would impair existing surface water rights, including minimum flow rights, then denial [of a permit] is required." /d. at 93. Though Postema was specifically decided in the context of Ecology's requirements prior to issuing permits, the rule in Washington is that groundwater appropriations cannot impede minimum flows. 11 Swinomish Indian Tribal Cmty., 178 Wn.2d at 598. It would be incongruous to limit Postema to the holding that Ecology must consider the effect of groundwater appropriations on minimum flows when issuing permits but that the County does not need to consider these same impacts when issuing building permits. The County emphasizes that Ecology expressly does not engage in the usual review of a permit application when considering permitexemptwells and exempt-use applications are not reviewed for impairmentofexisting rights. This argument misses the mark-the GMA explicitly assigns that task to local governments. See RCW 19.29.097(1); RCW 58.17.110. A recent decision from Division One of the Court ofAppeals in Fox v. Skagit County, 193 Wn. App. 254,

_ P.3d

_ (2016), petition for review filed, No. 93203-4 (Wash. June 7, 2016), 12 lends further support to the conclusion that counties must

11 In Postema, we considered Ecology's denial of applications for groundwater appropriation permits on the basis that groundwater sources are in hydrological continuity with surface water sources and further appropriations were foreclosed under RCW 90.03.290. 142 Wn.2d at 77-78. In analyzing whether Ecology properly denied permits under RCW 90.03.290, we considered the statutory requirements placed on Ecology to consider the interrelationship between surface waters and groundwater in issuing permits and asserted that Ecology "must determine whether surface water rights would be impaired or affected by groundwater withdrawals." /d. at 80-81. This was particularly relevant because RCW 90.03.290, which authorizes Ecology to issue permits for water appropriation, "does not
... differentiate between the impairment of existing rights based on whether the impairment is de minimis or significant." /d. at 90. 12 The decision ofthe Court ofAppeals in Foxwas issued after oral argument in the present
32Whatcom County, Hirst (Eric) v. W Wash. Growth Mgmt. Hr'gs Bd., No. 91475-3 consider minimum flows when issuing building permits, even for developments relying
on permit-exemptwells. The case concerned the denial ofa building permitwherethe only source ofwaterfor the proposed developmentwas from a permit-exempt well in hydraulic continuity with a river that was subject to an instream flow rule, and that regularly falls below its minimum flow requirements. /d. at 260. The Court ofAppeals rejected the argument that a permit-exempt well would satisfy on its own the "adequate water supply" requirement for a building permit under RCW 19.27.097. /d. at 269-70. Because the right to use a permit-exempt well is subject to the prior appropriation doctrine, the court held that a determination of water availability for purposes of issuing a building permit requires that the county consider whether the development would impair senior water rights, including rights established by an instream flow rule. /d. The opinion in Fox is consistent with our prior decisions in Kittitas County, Swinomish Indian Tribal Community, and Postema, and with our decision today. By deferring to Ecology's Nooksack Rule, the County authorizes building permits on a presumption of water availability in lieu of the GMA's requirement of

case had occurred. Petitioners submitted this additional authority to the Court for consideration. Appellant's Statement of Additional Authority at 1. In their statement, the petitioners quoted several passages from the opinion, prefacing each quote with a short statement about the context or meaning of the passage. Respondent County objected to petitioners' statement, claiming that it contained impermissible argument in violation of RAP 1

0.8. Objection to Appellants' Statement ofAdditional Authority at 1. Respondent asked this court to either reject the statement or, in the alternative, strike all argument from the statement. /d. at 2. Under RAP 1 0.8, a party should identify the issue for which the additional authority is offered but the statement "should not contain argument." We agree with the respondent that the petitioners' commentary on the quoted passages crosses the line between permissible identification and impermissible argument. We grant the respondent's motion to strike this language from petitioners' statement, but we decline to reject the statement in full. 33Whatcom County, Hirst (Eric) v. W Wash. Growth Mgmt. Hr'gs Bd., No. 91475-3 "evidence ofadequate water supply." As authorized by RCW 90.54.020(3), Ecology's Nooksack Rule established instream flows as "necessary to provide for preservation of wildlife, fish, scenic, aesthetic and other environmental values" at WAC 173-501- 030(1) to (3); these regulations expressly provide that only Whatcom Creek is closed to permit-exempt uses. See WAC 173-501-040(1), -070(2). However, the Nooksack Rule does not providethatwater is legallyavailablefor permit-exempt uses in all other streams in WRIA 1. See WAC 173-501-040(1), -070(2); see generally ch. 173-501 WAC. As the Board correctly states, each water use appropriation requires a factspecific determination. RCW 19.29.097(1); RCW 58.17.11 0. Because the County's plan does not require applicants to present evidence ofwater availability, the unasked question in the County is whether there is water that is legally available and that can be appropriated in certain areas of rural Whatcom County without conflicting with the applicable instream flows. Instead of evidence, the County presumes that water is available for all permit-exemptwells unless Ecology has explicitly closed a basin to all groundwater appropriations, specifically including permit-exempt appropriations. 13 The Board correctly found that this approach has an adverse impact on minimum flows, that it does not comply with the GMA, and that it is incompatible with our

13 Counties may not rely on Ecology's inaction in failing to close a basin as a determination that water is presumptively available for appropriation. Such inaction fails to provide any assurance that a new permit-exemptwell will not infringe on seniorwater rights, and thus fails to satisfy the obligation the GMA places on counties to ensure that water is legally available before issuing a building permit. See RCW 19.29.097(1); RCW 58.17.110. However, if and when Ecology makes a determination to close a basin to all future appropriations, including permit-exempt appropriations, this positive action by Ecology amounts to a recognition that water is not available for any use, and may form a reasonable basis for a county to find that water is not legally available for further appropriation. 34Whatcom County, Hirst (Eric) v: W Wash. Growth Mgmt. Hr'gs Bd., No. 91475-3 decisions that consistently protect instream flows from impairment by groundwater withdrawals.



### Ill. The Board Properly Ruled That the County's Rural Element Fails To Comply with the RequirementTo ProtectWater Quality We reverse the Court ofAppeals in part and hold that the Board's ruling that the County's rural element does not comply with the requirement to protect water quality is based on a proper interpretation and application of the law. The County argues-and the Court ofAppeals agreed-that the Board's reliance on preexisting water quality problems in Whatcom County improperly imposed a duty on the County to "enhance" water quality rather than to merely "protect" water quality. The County is correct that it does not have a duty to enhance water quality; however, the Board's ruling does not require counties to enhance water quality and the decision is supported by substantial evidence. 14 A. Comprehensive plans are notrequired to include provisions that enhance waterquality The GMA imposes several requirements and goals on a local government's planning. Comprehensive plans "shall provide for protection of the quality

... of groundwater used for publicwater supplies." RCW 36.70A.070(1) (emphasis added). It is a goal of the GMA to "[p]rotect the environment and enhance the state's high quality of life, including air and water quality." RCW 36.70A.020(10) (emphasis added).

14 During oral argument, the County conceded that it had notice of two documents by the second hearing before the Board and that the documents were now properly a part of the record. See Wash. Supreme Court oral argument, supra, at 52 min., 45 sec. to 57 min., 17 sec. Based on this concession and our reasoning at Section III.B, infra, we do not address this procedural argument further. 35Whatcom County, Hirst (Eric) 

### v. W Wash. Growth Mgmt. Hr'gs Bd., No. 91475-3 Hirst urges us to hold that counties must "enhance" water quality, relying on the County's related argumentthat local governments must adhereto the "planning goals" and "[g]eneral declaration of fundamentals" found in RCW 34.70A.020 and RCW 90.54.020, respectively, such that a county's comprehensive plan must both "protect" and "enhance" water quality. However, nothing in the language of either statute or in
our prior interpretations ofthe GMA goals support this interpretation. Subsection .020 ofthe GMA, chapter 36.70A RCW, provides 13 planning goals to "guide the development and adoption of comprehensive plans and development regulations of those counties and cities that are required or choose to plan under [subsection .040]." The goals "are not listed in order of priority and shall be used exclusively for the purpose of guiding the development of comprehensive plans and development regulations." RCW 36.70A.020. Additionally, "the GMA 'explicitly denies any order of priority among the thirteen goals' and it is evidentthat 'some ofthem are mutually competitive."' Quadrant Corp., 154 Wn.2d at 246 (quoting Settle, supra, at 11 ). Nothing in this plain language suggests that GMA goals impose substantive requirements on local governments. Indeed, we rejected a similar argument in Swinomish Indian Tribal Community when we held that the term "protect" does not impose a duty on counties to "enhance" water quality under RCW 36.70A.172(1). 161 Wn.2d at428. There, we considered the Swinomish Tribe's argument that the requirement to "protect" critical areas under the GMA requires measures to "enhance" because "where an area is already in a degraded condition, it is not being protected unless that condition is improved or enhanced."

### /d. at427. In rejecting that argument, we recognized thatthe term "protect" 36Whatcom County, Hirst (Eric) v. 

### W Wash. Growth Mgmt. Hr'gs Bd., No. 91475-3 may encompass an option of enhancement but that the term itself does not require enhancement. 

### /d. at 429. We also considered the legislature's deliberate use of the terms "protect" and "enhance" throughout the GMA, finding that "[i]n several sections ofthe GMA, the legislature allows enhancement of natural conditions under the GMA without requiring enhancement." /d. We have acknowledged that RCW 36.70A.020 lists the enhancement ofwater quality as a goal ofthe GMA, see id., but have never held that local governments are bound by these goals in addition to the enumerated requirements of the Act. See Quadrant Corp., 154 Wn.2d at 246. We adhere to that holding here-the GMA does not require counties to "enhance" water quality. Hirst's argument under the WRAfares no better than their argument under the GMA. Subsection .020 ofthe WRA, entitled "General declaration offundamentals for utilization and management ofwaters ofthe state," reads in relevant part: Utilization and management ofthe waters ofthe state shall be guided by the following general declaration offundamentals:
(3) The quality of the natural environment shall be protected and, where possible, enhanced as follows:
(b) Waters of the state shall be of high quality. Regardless of the quality of the waters of the state, all wastes and other materials and substances proposed for entry into said waters shall.be provided with all known, available, and reasonable methods of treatment prior to entry. Notwithstanding that standards of quality established for the waters of the state would not be violated, wastes and other materials and substances shall not be allowed to enter such waters which will reduce the existing quality thereof, except in those situations where it is clear that overriding considerations ofthe public interest will be served

....

37Whatcom County, Hirst (Eric) 

### v. W Wash. Growth Mgmt. Hr'gs Bd., No. 91475-3 (5) Adequate and safe supplies of water shall be preserved and protected in potable condition to satisfy human domestic needs. RCW 90.54.020. The plain language ofthis section requires the quality ofthe natural environment to be "protected." Waters are protected in part when "wastes and other materials and substances" are not allowed to enter the waters when those materials will reduce the existing quality ofthe water. RCW 90.54.020(3)(b). The statute further provides that "[a]dequate and safe supplies of water shall be preserved." RCW 90.54.020(5). The language in the WRAdoes not suggest that water quality must be "enhanced," and it does not supersede language from the GMA requiring water to be "protected." These goals, while admirable, simply do not impose a dutyon counties to enhance water quality. B. The Board's conclusion about waterqualityis notbasedon a duty to enhance waterquality The Board did not rule that the County had an obligation to enhance water quality. Its ruling that the County's policies relating to water quality do not satisfy the requirements ofthe GMAidentifiestwo specific problems. We address these concerns in turn.First, the Board concluded that the County policies 2DD.2.C.1, -2.C.3, -2.C.4, and -2.C.8 either do notapplythroughoutthe County's rural area or apply onlyto parts ofthe rural area. See FDO at 36, 39, 43. The Board further found that "no measures exist to limit development to protect water resources in the remaining portions ofthe County's Rural Area." /d. at 38 (emphasis omitted); see also id. at 39 ("[T]he County's Stormwater Manual does not provide measuresto protectgroundwaterthroughoutthe County's Rural Area."). Given these deficiencies, the Board concluded that
38Whatcom County, Hirst (Eric) v. W Wash. Growth Mgmt. Hr'gs Bd., No. 91475-3 the County is left without Rural Element Measures to protect rural character by ensuring land use and development patterns are consistent with protection of surface water and groundwater resources throughout its Rural Area. This is especially critical given the water supply limitations and water quality impairment documented in this case .... /d. at 43. The conclusion that these policies do not protect water quality is not based
on a dutyto enhance water quality. Second, the Board found that policy 2DD-2.C.2 "is not a measure limiting developmentto protectwater resources as required in RCW 36.70A.070(5)(c)(iv)." 

### /d. at 37-38. This policy is implemented through chapter 24.05WCC, which allows private homeowners in rural areas to inspect their own septic systems rather than requiring professional inspections. The Board noted significant disparity in reported failure rates and compliance rates between homeowners who self-inspect versus professional inspections, as well as studies showing water quality contamination from faulty septic systems. /d. at 37. In essence, the Board ruled thatthe County's current inspection system policies
were flawed and that continuing to rely on this flawed system would not protect water quality in the future. See id. at36-39. This also does not impose a duty on counties to enhance water quality. We therefore reverse the Court ofAppeals and hold that the Board applied the proper legal standard and analysis in concluding that the County's rural element policy does not complywith the GMA. The County also asserts that the Board's findings are not supported by substantial evidence. We note that the Board cited a "proliferation of evidence in the record of continued water quality degradation resulting from land use and development activities," id. at 35, including scientific reports in Ecology's 2010 State 

### 39Whatcom County, Hirst (Eric) 

### v. W Wash. Growth Mgmt. Hr'gs Bd., No. 91475-3 ofthe Watershed Report; Washington Department of Fish and Wildlife's Land Use Planning for Salmon, Stee/head and Trout; and the Puget Sound Partnership's 

### 2012/2013 Action Agenda for Puget Sound. KATIE KNIGHT, WASH. DEP'T OF FISH & WILDLIFE, LAND USE PLANNING FOR SALMON, STEELHEAD, AND TROUT: A LAND USE PLANNER'S GUIDE TO SALMONID HABITAT PROTECTION AND RECOVERY (2009) (WDFW 2009 REPORT); PUGET SOUND P'SHIP, THE 2012/2013 ACTION AGENDA FOR PUGET SOUND (2012). These reports conclude that water resource degradation in the County
can be attributed to land use and land development practices. FDO at 32-33 (citing WDFW 2009 REPORT, supra, at 77 (2009)). These reports also determined that "'stormwater runoff is the leading contributor to water quality pollution of urban waterways in western Washington State."' 

### /d. at 32 (quoting WDFW 2009 REPORT, supra, at 39-40). The County's arguments dismissing this evidence as merely "generalized evidence ofwater quality problems" miss the point: as the Board properly observed, counties must include protective measures in their comprehensive plan. /d. at 35 (citing Kittitas County, 172 Wn.2d at 164). The Board's conclusion that the County plan does not have the necessary measures to complywith this requirement is all that is needed to establish that the County's comprehensive plan does not satisfy the GMA. The evidence cited by the Board is not essential to this ruling; it is instead intended to underscore the importance of implementing effective protective measures in rural Whatcom County. Therefore, we reverse the CourtofAppeals' holding thatthe Board's decision improperly imposed a dutyon the Countyto "enhance" water quality

40Whatcom County, Hirst (Eric) 

### v. W Wash. Growth Mgmt. Hr'gs Bd., No. 91475-3 rather than to merely "protect" water quality and affirm the Board's ruling that the County's rural element fails to comply with the requirement to protectwater quality. IV. The Board Has Discretion To Declare a Comprehensive Plan Invalid Finally, Hirst cross appeals the Board's decision declining to declare the County's comprehensive plan invalid. Hirst argues that the Board erroneously interpreted and applied the GMA because it applied an incorrect legal standard. We hold that the Board did not abuse its discretion in declining to make a determination of invalidity. The GMA provides statutory remedies for plans or regulations that the Board determines violate the GMA. As we have previously observed when interpreting these provisions, the GMA provides the Board with "two options: (1) it may enter afinding of noncompliance or (2) it may enter a finding of invalidity." Town of Woodway 

### v. Snohomish County, 180 Wn.2d 165, 174, 322 P.3d 1219 (2014) (citing RCW 36.70A.300(3)(b), .302). We review the Board's exercise ofthese options for abuse of discretion. See id. RCW 36.70A.302(1) provides the legal standard under which the Board determines whether to make a finding ofinvalidity: (1) The board maydetermine that part or all of a comprehensive plan or development regulations are invalid if the board: (a) Makes a finding of noncompliance and issues an order of remand under RCW 36.70A.300; (b) Includes in the final order a determination, supported by findings offact and conclusions of law, that the continued validity of part or parts of the plan or regulation would substantially interfere with the fulfillment ofthe goals ofthis chapter; and (c) Specifies in the final order the particular part or parts of the plan or regulation that are determined to be invalid, and the reasons for their invalidity.
41Whatcom County, Hirst (Eric) 

### v: W Wash. Growth Mgmt. Hr'gs Bd., No. 91475-3 (Emphasis added.) The legislature's use of the term "may" generally indicates the existence of an option that is a matter of discretion. Nat'! Elec. Contractors Ass'n 

### v: Rive/and, 138 Wn.2d 9, 28, 978 P.2d 481 (1999) (citing Yakima County (W Valley) Fire Prot. Dist. No. 12 v. City of Yakima, 122 Wn.2d 371, 381, 858 P.2d 245 (1993));
see also WAC 365-196-210(20). In denying Hirst's request for an order of invalidity, the Board stated: This Board has previously held that it will declare invalid only the most egregious noncompliant provisions which threaten the local government's future ability to achieve compliance with the Act. Although the Board finds areas of noncompliance with the GMA, Petitioners have not met the standard for a declaration of invalidity. FDO at 50 (footnote omitted). Hirst argues, correctly, that the GMA standard for a determination of invalidity is not "the most egregious noncompliant provisions which threaten the local government's future ability to achieve compliance with the Act." While this is a correct statement of the law, it is irrelevant to determining whether the Board properly exercised its discretion by requiring a heightened showing before it electsto invalidate
a noncompliant provision. As the quoted language shows, the Board is asserting its
own standards for invalidating provisions. Hirst's argument fails to acknowledge that the plain language ofsubsection .302(1) articulates the threshold requirements for a board to make a determination of invalidity; a board may not make a determination of invalidity ifthose requirements are not satisfied, but it is not required to make afinding of invalidity ifthey are. Cf. Spokane County

### v: E. Wash. Growth Mgmt. Hr'gs Bd., 176 Wn. App. 555, 578, 309 P.3d 673 (2013) (Board's determination of invalidity satisfied

42Whatcom County, Hirst (Eric) 

### v. W Wash. Growth Mgmt. Hr'gs Bd., No. 91475-3 the statutory requirements and was based on due consideration ofthe facts), review denied, 179 Wn.2d 1015 (2014). Therefore, we affirm the Court ofAppeals on this issue and hold thatthe Board did not abuse its discretion in declining to make afinding of invalidity. CONCLUSION We reverse the Court ofAppeals and hold that the County's comprehensive plan does not satisfy the GMA requirements to protect water availability or water quality. However, we affirm the Court ofAppeals' holding thatthe Board did not abuse its discretion in declining to make afinding ofinvalidity. Wetherefore reverse the Court ofAppeals in part and remand tothe Board forfurther proceedings consistent with this opinion.

43Whatcom County, Hirst (Eric) 

### v. W Wash. Growth Mgmt. Hr'gs Bd., No. 91475-3

WE CONCUR.


## (

44

### Whatcom County, eta!. 

### v. W Wash. GrowthMgmt. Hr 'gs Bd.

No. 91475-3 MADSEN, C.J. (concurring)-! agree withthe majority thatthe Growth ManagementAct (GMA), chapter 36.70A RCW, places a burden on counties to assure the factual and legal availability ofwaterbefore issuing buildingpermits. And Whatcom County (County) failed to meetthis burdenby simply relying on the Department of Ecology's "NooksackRule" 1

### ratherthan actually making a finding thatwaterwas available. I write separately to emphasizethe duty ofthe State, tribes, and local governments to worktogetherto ensurethere is available waterbefore issuing building permits, ratherthan lettingtheirburdenfall onto individual permit applicants. Discussion The majority holds thatthe County failed to meet its duty underthe GMAto

ensurewaterwas factually and legally available before issuingbuildingpermits. Majority at 2, 13. I agree withthis holding. The GMAplaces a duty on counties to
ensure that wateris both factually and legally availablebefore they issuebuilding permits. RCW 19.27.097(1); RCW 58.17.110(2); 

### see majority at 18-20. This courthas

1

### TheNooksackWater Resource Inventory Area, chapter 173-50I WAC.91475-3 Madsen, C.J., concurring recognizedthis duty before. Kittitas Countyv. E. Wash. GrowthMgmt. Hr'gsEd., 172 Wn.2d 144, 179-80, 256 P.3d 1193 (2011); see majority at 20-21. Here, the County failed to ascertain whether therewas availablewaterbefore issuingbuildingpermits. Rather, the County shiftedits statutory duty underthe GMAto the Department ofEcologyby adoptingEcology'spresumptiveNooksackRule. Where,

as here, Ecologyhas not actually determined whetherwateris available, the County is not entitled simplyto rely on Ecology's rule. 2 As the majority holds, the Countyhas an independent duty underthe GMAto ensure wateris both factually and legally available before issuing buildingpermits. Iwrite separately to address the dissent's concernthatthe majority is shifting the burden ofshowing water availability onto individual permit applicants. Dissent at 1, 16. Likethe dissent, I fear the majority couldbereadto saythatiftheCountycannotrely on Ecology'srule, then it can shift its burden ontopermit applicants. Butthatis notso. Rather, the State and local governments have independent statutory duties to ensure water availability, andthey mustworktogetherto protectwaterresources and ensure water availability as part oftheir comprehensiveplanningprocess.3

2 By adopting the Nooksack Ru1e, the Countypresumesthere is an adequate supplyto provide water for apermit-exemptwell unless Ecology has expressly closedthat areato permit-exempt appropriations. Majority at 2. As the majority notes, this means the County's position is that "water is presumptively available-i.e., that 'notunavailable' is synonymous with 'available."' !d. at 9. For further discussion ofthe Nooksack Rule, see id. at 21-22. 3 Ecology is, ofcourse, not aparty to this case, so this court cannot direct what itmust do to assist the Cotmty inthe development ofacomprehensive plan and zoning code thatmeets the County's obligations under the GMA. Butthis case presents an opportunity to highlightthe



### 2

### 91475-3 Madsen, C.J., 

### concurring
The State and the counties each have an independent statutory duty to ensure water availability. Forexample, before issuing a groundwaterpermit, Ecology must investigate and affirmatively find "(1) that water is available, (2) for abeneficial use, and that (3) an appropriationwill not impair existing rights or (4) be detrimentalto the public welfare." Dep'tof Ecologyv. Campbell & 

### Gwinn, LLC, 146 Wn.2d 1, 8, 43 P.3d4 (2002) (citingRCW90.03.290). Underthe GMA, a county's comprehensiveplan, RCW 36.70A.040, mustinclude a land use elementthatprovides for the "protection ofthe quality and quantity ofgroundwaterused for publicwater supplies." RCW 36.70A.070(1). And before issuing abuildingpermit, a county mustdeterminethatthere

arepotable water supplies. RCW 58.17.110(2)(a). Thus, boththe State and the counties have an independent duty to ensurewater availabilitypriorto issuingpermits. Although eachhas an independent statutory duty, the legislature envisioned cooperation between the State and local governments when itenacted the Water Resources Actof 1971 (WRA), chapter 90.54 RCW, and, later, the GMA. The legislature included language highlighting this cooperative approach throughoutthe statutes: To ensurethat availablewater supplies are managedto best meetboth instream and offstream needs, a comprehensiveplanningprocess is essential
....Through a comprehensiveplanningprocess that includes the state, Indian tribes, localgovernments, and interestedparties, it is possible to make betteruse ofavailable water supplies and achieve better management ofwaterresources. Through comprehensiveplanning, generally applicable importance ofcomprehensive planning betweenthe State and local governments underthe WaterResources Act of 1971, chapter90.54 RCW, and the GMA.

3

### 91475-3 Madsen, C.J., concurring
conflicts amongwaterusers and interests canbereduced orresolved. 

### Itis in the best interests ofthe state that comprehensivewaterresourceplanning be given a highpriority. RCW 90.54.010(1)(b) (emphasis added); RCW 36.70A.103 (state agencies shall comply with local comprehensiveplans), .106(1) (state agencies may provide comments to local governments on aproposed comprehensiveplan); RCW 19.27.097(2) (county and state may mutually determine to which areas the buildingpermitrequirements do not apply);



### see also WAC 365-196-700(5) ("The [WRA] is a mandate to government at all levels to engage in coordinatedplanning and cooperative implementation."). This court has recognizedthe cooperative spiritthatthe legislature envisioned when enactingthese statutes. In

### Kittitas County, whilereaffirming the county's responsibility in land use decisions, we emphasized, "[W]e do not intendto minimizethe role ofEcology. 

### Ecology maintains its role, as providedby statute, 

### andought to assist counties intheir landuseplanning to adequately protectwaterresources." 172 Wn.2d at 180 (emphasis added). The majority too recognizes the cooperative approachthatthe GMAenvisions. Majority at 27. Butthe majority focuses onhowthe County cannot use the cooperative approachto "disregardevidence ofminimumflow impairments in reliance on an outdated regulation." 

### !d. at 30. While I agree, I think it shouldbe made clearthatthe statutes do not expectthe burdento fall onindividual applicantswherethe County has failed to meetits initial burden ofdeterminingwater availability through its comprehensiveplanning and developmentregulations.

491475-3 Madsen, C.J., concurring
Whenthe counties and Ecology combine theirplanning andwaterresources authority, thetechnical resources andplanning solutions offer a widerange oftools to

ensure water availability. Forexample, a county can make its densities consistentwith water availability, providewater mitigation, or ensure there are limited impervious surfaces so that morewater goes into streams.4 Althoughthe legislature has placed a burden on individual applicants to provide evidence ofwater, RCW 19.27.097(1), there

are steps thatthe State andthe counties musttake under their statutory duties to protect waterresources, ensure water availability, and engage in a comprehensiveplanning process. Theburden onpermit applicants underRCW 19.27.097(1) assumes thatthe State andthe counties have already compliedwith their statutory duties to ensure the availability ofwater. Thus, theburdento provide evidence ofwater falls on individual applicants only wherethe State andthe counties have first fulfilled their statutory duties ofensuring thatwateris available. The State andthe counties cannotmeettheir respective duties toprotectthis State's dwindlingwaterresources by relying onone another's rules or shiftingtheir burdens to others. As stewards ofourvaluable waterresources, the State andthe counties mustworktogethertodevelop comprehensiveplans to address waterusage in

4 Wash. Supreme Court oral argument, Whatcom County v. Hirst, No. 91475-3 (Oct. 20, 2015), at 30 min., 50 sec., audio recording byTVW, Washington State's Public Affairs Network, http://www.tvw.org. See also Kittitas County Conserv. Coal. v. Kittitas County, Nos. 07-1- 0004c & 07-1-0015, 2014 WL 4809403, at *8-11 (E. Wash. Growth Mgmt. Hr'gs Bd. Aug. 13, 2014) (detailing the comprehensive plan, developed afterremand from this Court in Kittitas County, 172 Wn.2d 144, found in compliance withthe GMA).

5

### 91475-3 Madsen, C.J., concurring

our State. RCW90.54.010(b). I write separately to emphasize it is the burden ofthe State and local governments, independently and in cooperation, to determine water availability inthe first instance. This is not aburden to be shifted onto individualpermit applicants.

6

### 91475-3 Madsen, C.J., concurring

7

### Whatcom County, Hirst (Eric), eta!. v. W: 

### Wash. Growth Mgmt. Hr'gsBd.

No. 91475-3

STEPHENS, J. (dissenting)-The majority's decision hinges on an interpretation ofRCW 19.27.097 that is unsupported bythe plain language ofthe statute, precedent, orcommon sense. 

### Itassumes thisprovision ofthebuilding code requires Whatcom Countyto determine waterright priorities before it may grant a building permit that relies on a permit-exempt well. 

### It also assumes this provision prohibits thecounty from relying onthe Department ofEcology's determinationof whether water is available for withdrawal in a particular basin. The effect ofthe majority's holdingisto requireindividualbuildingpermitapplicantsto commission

a hydrogeological study to show that their very small withdrawal does not impair senior water rights, and then have the local building department evaluate the adequacy of that scientific data. The practical result of this holding is to stop counties from grantingbuildingpermitsthatrelyonpermit-exemptwells. Notonly

### Whatcom County, Hirst (Eric), etal. v. W. Wash. GrowthMgmt. Hr'gs Bd., 

### 91475-3 (Stephens, J. 

### Dissenting)

isthiscontraryto theclearlegislativepurposeofRCW 19.27.097,itpotentiallyputs counties at odds withthe Department ofEcology andimposes impossible burdens

on landowners. I respectfully dissent. 

### L RCW

### 19.27.097DoesNotRequireBuildingPermitApplicants To Provide Evidence of theLegalAvailabilityof Water 

### The majority holds that to satisfy the Growth Management Act (GMA), chapter36.70ARCW, thecountycannotrelyontheDepartmentofEcology's water availability determinations, but instead must require building permit applicants relying on permit-exempt wells to provide the county with evidence that water is bothfactually and legally available. See

### majority at 19-20. Themajority'sholding relies onafaultyinterpretationofRCW 19.27.097. That statuteprovidesinrelevant part, (1) Each applicant for a building permit ofa building necessitating potable water shall provide evidence ofan adequate water supply for the intended use ofthe building. Evidence may be in theform ofa water right permit from the department ofecology, a letter from an approved water purveyor stating the ability to provide water, or another form sufficient to verify the existence ofan adequate water supply. In addition to other authorities, the county or city may impose conditions on building permits requiring connection to an existing public water system where the existing system is willing and able to provide safe and reliable potable water to the applicant with reasonable economy and efficiency. 

### An application for a water right shall notbe sufficientproofofan adequate water supply. (2) Within counties not required or not choosing to planpursuant to RCW 36.70A.040, the county and the state may mutually determine those areas inthe countyinwhichtherequirements ofsubsection (1) ofthis section shall not apply. The departments ofhealth and ecology shall coordinate on the implementation ofthis section. Should the county and the state fail to -2-

### Whatcom County, Hirst (Eric), etal. v. W 

### Wash. GrowthMgmt. Hr'gs Bd., 

### 91475-3 (Stephens, J. 

### Dissenting)
mutually determine those areas to be designatedpursuantto this subsection, the countymaypetitionthe department ofenterprise services to mediate or, ifnecessary, make the determination. RCW 19.27.097. While part ofthe GMA, this statute is codified inthe building code, chapter 19.27 RCW. 

### SeeKittitas County v. E. Wash. GrowthMgmt. Hr'gsBd., 

### 172 Wn.2d 144, 178-79, 256 P.3d 1193 (2011). It 

### sends a simple message to building permit applicants: "showmethewater." It

### does notrequirecountiestomodifytheirgrowth managementordinancesto deviatefromthe DepartmentofEcology'sdetermination ofwhether water is available for use in a particular basin. Nor does it require applicants to undertake the burden ofshowingthattheuse ofapermit-exempt well will notimpair seniorwaterrights. The plain language of RCW 19.27.097 supports this interpretation. The methodsthatan applicantmayuseto showthereisan "adequatewatersupply" speak to the actual presence of water, not its legal availability. RCW 19.27.097(1) ("Evidence may be in the form of
... a letter from an approved water purveyor stating the ability to provide water."). Furthermore, the statute uses the term "adequate" to describe the water supply; it does not use "available." 

### Id. This is important, as "[ w]epresumethelegislatureintends a differentmeaningwhenituses different terms." 

### Foster v. Dep't of Ecology, 184 Wn.2d 465, 473, 362 P.3d 959

-3-

### Whatcom County, Hirst (Eric), etal. v. W Wash. GrowthMgmt. Hr'gsBd., 

### 91475-3 (Stephens, J. 

### Dissenting)
(2015). In the water code, where the legislature intends an investigation ofboth factual and 

### legal availability of water, it uses the term "available." See 

### RCW 90.03.290(1) (providing that under the water code's appropriation procedure, it is thedutyoftheDepartmentofEcologyto "determinewhatwater, ifany, is available 

### for appropriation" (emphasis added)), .290(3) ("if [the department] shall find that there is wateravailable 

### for appropriation for abeneficialuse, andthe appropriation thereof as proposed in the application will not impair existing rights or be detrimental to thepublic welfare, it shall issue apermit
. . . . Butwhere there is no unappropriated water in the proposed source ofsupply, or where the proposed use conflicts with existingrights,"the department shall rejectthe application (emphasis added)). InGMAregulations, theterm "adequate"refers to actualwatersupply, not legal availability. See 

### WAC 365-196-210(3) (Department of Commerce GMA regulations defining "adequate public facilities" as "facilities which have the capacity to serve development without decreasing levels ofservice below locally establishedminimums"), -410(1)(d) ("Thehousing elementmustcontainatleastthe following features:
... [a]dequate provisions for existing and projected housing needs ofall economic segments ofthecommunity."). Themajority'sattemptto tiethe GMA'sbroadpolicyobjectives andplanning goals to this statute overlooks the fact that RCW 19.27.097 applies to both GMA

-4-

### Whatcom County, Hirst (Eric), etal. v. 

### W. Wash. GrowthMgmt. Hr'gsBd., 91475-3 

### (Stephens, J. 

### Dissenting)

and non-GMA counties. The statute speaks directly to an individual applicant's burdens, not to therequired elements ofacounty's comprehensiveplan. See

### RCW 19.27.097(1) ("Each applicant 

### for a building permit of a building necessitating potable water shall provide evidence ofan adequate water supply for the intended
use ofthe building." (emphasis added)). Although under this statute non-GMA counties can require building permit applicants to provide evidence ofan adequate water supply, this is not mandated. In non-GMA counties, applicants may or may nothave to show evidence ofpotable water. RCW 19.27.097(2) ("Within counties not required or not choosing to plan pursuant to RCW 36.70A.040, the county and thestatemaymutuallydeterminethoseareasinthecountyinwhichtherequirements ofsubsection (1) ofthis section shall not apply."). The majority's holding, which requires applicants for a building permit in a GMA county to prove the legal availability of water, will lead to inconsistent protection for seniorwaterrights holders across the state. See 

### 1992 Op. Att'yGen. No. 17, at 7 n.4 ("In areas where RCW 19.27.097(1) does not apply, the local building department will not need to determine whether there is an adequate water supply before issuing a building permit."). Under the majority's interpretation, senior water rights holders in GMA counties can rely on counties to look at applicants' evidence and deny building permits when permit-exempt wells would

-5-

### Whatcom County, Hirst (Eric), eta!. v. W. 

### Wash. GrowthMgmt. Hr'gsBd., 

### 91475-3 (Stephens, J. 

### Dissenting)

interferewith seniorwaterrights. However, innon-GMA countieswhereapplicants relyingonpermit-exemptwellsdo nothavetoprovewaterislegallyavailable, senior water rights holders bear the burden of determining a permit-exempt well is interfering with their rights and initiating a lawsuit to stop the impairment. 1 

### We cannotread therequirements ofthebuilding codeto create suchunequalprotection for seniorwaterrightsholders. Noticeably missing from the majority's analysis ofRCW 19.27.097 is any discussion ofthe inconsistent protection its interpretation creates. The majority brushes offthis argument, stating, "While the dissent correctly notes that RCW 19.27.097 contains separate requirements for GMA and non-GMA counties, this does notgivethis court grounds toignorethe rest oftheGMA." Majorityat 20 n.6. Thiscourt shouldnotinterpret a statute so as to givepeopleinsomecountiesgreater protection for their water right than others, especially when the result is to foster piecemealdecision-makingregardingwateruse. ByinterpretingRCW 19.27.097to
mean "show me the water" and allowing counties to rely on the Department of Ecology's determination ofwhether water is 

### legally available, I do not ignore the

1 

### Permit-exempt wells that are regularly, beneficially used, are "entitledto a right equal to that establishedbyapermit." RCW 90.44.050. "The authority to adjudicate and enforce waterrights
...is specifically granted to the superior courts ...." Rettkowski v. Dep 't of Ecology, 

### 122 Wn.2d 219, 225, 858 P.2d 232 (1993), a.ff'd inpart and rev'd in part, 

### 128 Wn.2d 508, 910 P.2d462 (1996).-6-

### Whatcom County, Hirst (Eric), etal. v. W Wash. GrowthMgmt. Hr'gsBd., 

### 91475-3 (Stephens, 

### J. Dissenting)



### other provisions of the GMA. Instead, I harmonize the GMA and the Water Resources Act of 1971 (WRA), chapter 90.54 RCW, and its goal of consistent decision-making-somethingthe majority fails to do. The WRA requires the Department of Ecology, "through the adoption of appropriate rules
...to develop and implement
... a comprehensive 

### state water
resourcesprogramwhichwillprovideaprocessformakingdecisions onfuture water
resource allocation and use." RCW 90.54.040(1) (emphasis added). The ordinary meaning of"comprehensive" is "covering a matterunder consideration completely
or nearly completely." WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 467 (2002); see Tingey v. Haisch, 

### 159Wn.2d 652, 658, 152P.3d 1020 (2007) ("When a termhas a well-accepted, ordinarymeaning, a regular dictionary maybe consulted to ascertain the term's definition."). The legislature recognized the need for comprehensiveplanningto effectivelymanagewaterresources: To ensure that available water supplies are managed to best meet both instream and offstream needs, a comprehensive planning process is essential.
. . . Through a comprehensive planning process that includes the state, Indian tribes, local governments, and interested parties, itis possibleto makebetteruse ofavailable water supplies and achieve better management of water resources. Through comprehensive planning, conflicts among water users and interests can be reduced orresolved. RCW 90.54.010(l)(b).

-7-

### Whatcom County, Hirst (Eric), eta!. v. 

### W. Wash. GrowthMgmt. Hr'gsBd., 

### 91475-3 (Stephens, J. 

### Dissenting)

The legislature also recognized that water does not respect human-made boundaries. It 

### found that "[c]omprehensive water resource planning is best accomplished through a regional planning process sensitive to the umque characteristics and issues ofeach region." RCW 90.54.010(1)(c). The legislature entrustedthe Department ofEcologywiththetask ofdeveloping and implementing the "comprehensive state water resources program." RCW 90.54.040(1). It 

### also instructed local governments, including counties, to "wheneverpossible, carry out powers vested in them in manners which are consistent with the provisions ofthis chapter." RCW 90.54.090. In response to the WRA, the Department ofEcology establishedtheWaterResources ManagementProgram, see

### ch. 173-500WAC, and water resource inventory areas, such as the "Nooksack Rule" at issue in this case, see, e.g., 

### ch. 173-501 WAC. See alsoPostema v. Pollution ControlHr'gsBd., 

### 142 Wn.2d 68, 81, 83, 11 P.3d726 (2000). I wouldinterpretRCW 19.29.097 to alignwiththeWRA. Allowingcounties to integrate the Department of Ecology's water determinations into their comprehensiveplans andrely onthemwhenreviewingbuildingpermitapplications promotes the integrated, comprehensive management the legislature envisioned. It 

### also promotes consistent water management throughout a basin, recognizing that basins cross countylines.

-8-

### Whatcom County, Hirst (Eric), eta!. v. 

### W. Wash. GrowthMgmt. Hr'gs Bd., 

### 91475-3 (Stephens, 

### J. Dissenting)



### Incontrast,themajority'srule clasheswiththeWRA. Themajority'sholding will lead to county-by-county decisions on water use that directly undermine the WRA's mandate for a comprehensive water management plan. Not only that, but the majority's approachrisks arace-to-the-bottominwatermanagement. Counties, lacking both the Department ofEcology's expertise and its statewide perspective,
are ill equippedto thoroughlyvetthe informationthatpermit applicants will offerto show no impairment. Nor do county building departments have an obligation to perform their own research or consult with other potentially affected parties (e.g., tribes orothercounties)beforedecidingwhethera small wellwillnegativelyimpact
a senior water right. Ofcourse, counties often do 

### have an incentive to approve building permits, increasing the local tax base and boosting economic growth through new development. Requiring counties to make their own determination of whether water is legally 

### available-rather than allowing them to rely on the Department of Ecology-undermines the comprehensive water management requiredbytheWRA.2

2 

### Ifthe Department ofEcology determines that water is not legally available for permit-exempt withdrawals, ithas the authorityto close a basin to all future consumptive use, including permit-exempt wells. See 

### WAC 173-501-070(2) (closing Whatcom Creek "toanyfurther appropriation, including otherwise exempted singledomesticuse"). Under the rule I propose, counties could integrate the Department ofEcology's rules into their codes and rely on its closure ofa basin to permit-exempt withdrawals to deny a building permit. Although the majority does not address this scenario, its holding suggests that -9-

### Whatcom County, Hirst (Eric), etal. v. W. 

### Wash. GrowthMgmt. Hr'gsBd., 

### 91475-3 (Stephens, 

### J. Dissenting)


### Finally, the majority's interpretation is contradicted by the Department of Commerce's GMA developmentregulations and aformal attorney general opinion. The Department of Commerce regulations incorporate RCW 19.27.097's requirement that applicants for building permits provide evidence "ofan adequate water supply for the intended use ofthe building." WAC 365-196-825(1). The regulations also statethat cities and counties should consult 1992 AttorneyGeneral OpinionNo. 17 (AGOpinion),whichinterpretsRCW 19.27.097'srequirements "for assistanceindeterminingwhatsubstantive standards shouldbeapplied." WAC 365- 196-825(2). Formal attorney general opinions "are generally 'entitled to great weight."' Five CornersFamilyFarmers v. State, 

### 173 Wn.2d296,308,268P.3d 892 (2011) (quoting Seattle Bldg. & 

### Constr. Trades Council v. Apprenticeship & 

### Training Council, 

### 129 Wn.2d787, 803, 920 P.2d 581 (1996)). The AG Opinion explains that "an 'adequate' water supply is one that is of sufficient quality and sufficient quantity to satisfy the demand created bythe new building." 1992Op. Att'yGen.No. 17, at7. Determiningwhetherthereis sufficient quantity depends onthe source ofthewater: apublic water system oranotherwater
source. !d. 

### at 9-10. Moreover, this is solely a local determination. !d. 

### ("[L]ocal

counties could

### notrelyontheDepartmentofEcology's decisionto closeabasin,butwould insteadhaveto engageinanindependentanalysistodetermineifaproposedpermit-exempt withdrawal would, infact, affecta seniorwaterrightbefore denying a building permit. 

### -10-

### Whatcom County, Hirst (Eric), etal. v. W. 

### Wash. GrowthMgmt. Hr'gsBd., 

### 91475-3 (Stephens, J. 

### Dissenting)
building departments will be able to exercise greater discretion when determining whether other water sources provide water ofsufficient quality and quantity" than theymay exercise overpublicwater systems). TheAG Opinion explains that "any applicant for a buildingpermitwho claims thatthebuilding'swaterwill come from surface or ground waters ofthe state, other than from a public water system, must prove that he has a right to take such water." 

### !d. at 10-11. In order to meet this burden, the applicantmust eitherhave a permit from the Department ofEcology or meet the requirements for a permit-exempt we11.3 

### See id. (discussing permitting requirements andexception). NothingintheAGOpinion suggests abuildingpermit applicant must hire experts or undertake litigation to demonstrate that a permitexemptwellwillnotimpairany seniorwaterright. In a footnote, the AG Opinion explains thatjuniorwater rights-established either by permit or by beneficial use of a permit-exempt well-may at times be curtailedto ensure no impairment ofsenior waterrights. 

### See id. at 11 n.5. The AG Opinion states,

3

### Tobe eligibletoutilize apermit-exemptwell, thewithdrawal ofgroundwatermust be "for stock-watering purposes, or for the watering of a lawn or ofa noncommercial garden not exceeding one-halfacre in area, or for single or group domestic uses in an amount not exceeding five thousand gallons a day, or as provided in RCW 90.44.052 [Whitman County clustered residential developments pilot project], or for an industrial purposein an amountnot exceeding five thousand gallons a day." RCW 90.44.050. -11-

### Whatcom County, Hirst (Eric), etal. v. W. 

### Wash. GrowthMgmt. Hr'gsBd., 91475-3 (Stephens, 

### J. Dissenting)



### !d. Although RCW 19.27.097 states that a water right permit from the Department ofEcology may be evidence ofan adequate water supply, we believe that, because ofthe first-in-time doctrine, it may not be sufficient evidence in cases where water is not actually available for withdrawal. In areas experiencing drought severe enough to deprive those holdingjunior waterrights ofwater, for example, alocalbuilding departmentcouldrequire evidence in addition to the water right that a sufficient quantity ofwater actuallywouldbeavailable for the building to be constructed.



### This statement should notbemisconstrued to suggest that an applicant must provethe legal availability ofwaterbefore the localbuilding department maygrant
abuildingpermit. It

### does notimpose a mandate onlocal departments. Rather, this passage in the AG Opinion describes a situation in whichjuniorwaterrights have been curtailed, and cautions that mere reliance on aDepartment ofEcologypermit maynot be sufficient in such situations. But, the curtailment of juniorwaterrights

occurs onlyafter competing waterrights havebeen resolved in superior court. See Rettkowskiv. Dep 'tofEcology, 

### 122Wn.2d219,225,234, 858 P.2d232 (1993),aff'd inpartandrev'd inpart, 

### 128 Wn.2d 508, 910 P.2d 462 (1996). The AG Opinion therefore suggeststhatalocalbuildingdepartmentcould

### requireadditional evidence ofno impairment ifthere has already been a water rights determination andjunior rights have been curtailed. This limited situation will not affect the majority of buildingpermit applications.

-12-

### Whatcom County, Hirst (Eric), etal. v. 

### W. Wash. GrowthMgmt. Hr'gs Bd., 

### 91475-3 (Stephens, J. 

### Dissenting)



### II. TheMajorityMisinterprets 

### Kittitas Countyv.EasternWashingtonGrowth Management Hearings Board and

### Postema v. Pollution Control Hearings Board The majority relies on Kittitas County 

### to reach its holding that RCW 19.27.097 requires applicants to show that water is legally available, and that the county, not the Department ofEcology, must make the ultimate determination of water availability. See 

### majority at 20 ("Through [RCW 19.27.097(1) and RCW 58.17.110(2)], the GMArequires counties to assure thatwateris bothfactually and legally available. Kittitas County, 

### 172 Wn.2d at 179-80."). The majority misinterprets that decision. In Kittitas County 

### we invalidated Kittitas County's subdivision regulations that allowed multiple, separately evaluated subdivision applications for properties that are all partofthe same development. Weheld such regulations "tacitly allow[] subdivision applicants to evade this court's rule in Campbell & Gwinn."4 

### Kittitas County, 

### 172 Wn.2d at 177 (citing Department of Ecologyv. Campbell & Gwinn,LLC, 

### 146Wn.2d 1, 43 P.3d4 (2002)). Weheld, Without a requirement that multiple subdivision applications of commonly ownedpropertybe considered together, the County cannot meet the statutory requirement that it assure appropriate provisions are made for potable water supplies. Instead, nondisclosure of common ownership information allows subdivision applicants to submit that appropriate

4 

### In Campbell & 

### Gwinn, 

### we held that "commonly owned developments are not

.exempt [from water permitting requirements] and therefore must comply with the establishedwell permitting process ifthe total developmentuses more than 5,000 gallons ofwaterper day." Kittitas County, 

### 172 Wn.2d at 177. -13-

### Whatcom County, Hirst (Eric), eta!. v. 

### W. Wash. GrowthMgmt. Hr'gsBd., 

### 91475-3 (Stephens, J. 

### Dissenting)
provisions are made for potable waterthrough exempt wells that are in fact inappropriate under Campbell & 

### Gwinn 

### when considered as part of a development, absent a permit. To interpret the County's role under RCW 58.17.110 to require the County to only assure water is physically underground effectively allows the County to condone the evasion ofour state's waterpermitting laws. 

### !d. at 180. The majority interprets this case to hold that the county must evaluate the factual and legal availability ofwater. Majority at 20-21. WhatKittitas County 

### in fact holds is that county regulations cannot circumvent the requirements for valid permits issued by the Department ofEcology; subdivision applicants required to obtainwaterpermits must obtainvalidpermits. InKittitas County, 

### we assumedthe validity ofpermit-exempt wells, without requiring a further showing ofno water rights impairment. 172 Wn.2d at 180. Thus, our decision inKittitas County 

### does not support the majority's imposition of additional burdens on building permit applicants and localjurisdictions. The majority also improperly relies on ourholding in Postema 

### to conclude that "[i]t would be incongruous to limit Postema 

### to the holding that Ecology must considerthe effect ofgroundwater appropriations onminimum flows when issuing permits but that [Whatcom] County does not need to consider these same impacts when issuing buildingpermits." Majority at 32. There are two problems withthis statement. First, 

### it rests on the same faulty interpretation ofRCW 19.27.097(1),
-14-

### Whatcom County, Hirst (Eric), eta!. v. 

### W. Wash. GrowthMgmt. Hr'gs Bd., 91475-3 (Stephens, J. Dissenting)



### discussed above. Second, it is not "incongruous" to limitPostema's 

### holding to the facts ofthat case. Bytransposing arule adopted forpermittedwells into the permitexempt context, the majority ignores the distinction between these types of withdrawals. See 

### majority at 32. This statutory-based distinction is discussed in greater detail below. While Postema 

### requires the Department of Ecology to determine if a permitted withdrawal of groundwater would negatively impact instream flows, nothing in that decision, or in the GMA, shifts this burden onto counties whenindividuals relyonpermit-exemptwells.5 

### III The Practical Effect ofthe Majority's Holding Is To Prevent New Construction ThatRelies onPermit-exempt Wells 

### The majority's holding amounts to a policy decision that GMA counties should not issue building permits that rely on permit-exempt groundwater withdrawals. This is not apolicy decisionwe are at libertyto make.

5

### The majority finds additional support for its position "thatcounties mustconsider minimmn flows whenissuing building permits, even for developments relying onpermitexemptwells" in

### Fox v. Skagit County, 193 Wn. App. 254,_P.3d_(2016) (Division One),

### petitionfor reviewfiled, No. 93203-4 (Wash. June 7, 2016). Majority at 33. A petition for review is pending in

### Fox, and it offers no greater authority than the decision below, also from DivisionOneofthe CourtofAppeals. 

### See id. Forthereasons explained above, I 

### wouldrejectDivisionOne'sviewthat acountymustdetermine whetherapermitexemptwellwouldinfringe seniorwaterrights before issuing abuildingpermit. 

### See id. at 271. -15-

### Whatcom County, Hirst (Eric), eta!. v. W. 

### Wash. GrowthMgmt. Hr'gsBd., 91475-3 (Stephens,

### J. Dissenting)

Determinations ofwateravailability are complex and costly. Werecognized in 

### Postema that "[t]he interrelationship [between groundwater withdrawals and surface water] can be quite complex and effects are sometimes difficult or impossible to measure in the field. Also, pumping groundwater may not have a discemable effect on surface water until considerable time has passed, depending uponthe conditions." 142Wn.2d at75-76.6 

### Themajorityfails to acknowledgethe astronomical task it assigns to individual applicants. This task is particularly difficulttojustifyin lightofthe smallness ofpermit-exemptwithdrawals?

6 

### The majority relies on 

### Postema for the proposition that the Department of Ecology's understanding the effects of groundwater withdrawals on surface water has changed overtime. 

### See majorityat 10. The majoritythen states thatbecause in

### Postema we held the Department of Ecology must take these impacts into consideration when issuing groundwater withdrawal permits, counties must also take these impacts into account whenissuing building permits. 

### I d. at 10-11. As explained above, 

### Postema does not require counties to evaluate the legal availability ofwater when considering building permits relying on permit-exempt wells. Furthermore, just because the Department of Ecology's understanding ofwaterhas evolveddoes notmeanthat counties arerequiredto reevaluate the science behindthe Department ofEcology's basinrules. Ifa party wishes to challenge abasinrulebecause of"old"science, thepartymaydo sounderWashington's Adruinistrative Procedure Act, chapter 34.05 RCW. A challenge to the county's comprehensive planis notthe appropriateprocedure. 7 

### Domesticusepermit-exemptwells maynotwithdraw more than 5,000 gallons of water per day. RCW 90.44.050. That equates to 3.47 gallons per minute (gpm). For comparison, for houses constructed under the Department of Housing and Urban Development mortgage insurance relying on individual water systems, "[t]he system should be capable ofdelivering a flow of 5 gpm." 24 C.P.R. §200.926d(f)(2)(i). The withdrawals at issue in

### Postema were 280 gpm, 142 Wn.2d at 101; 200 gpm, 

### id. at 103; 3,500 gpm, 

### id. at 108; 60 gpm, 

### id. at 111; and 100 gpm, 

### id. at 115. -16-

### Whatcom County, Hirst (Eric), etal. v. W. 

### Wash. GrowthMgmt. Hr'gsBd., 

### 91475-3 (Stephens, J. 

### Dissenting)

This is not to say that studying the effect of permit-exempt wells is unimportant,justthat it is unlikely to be undertaken by individuals applying for a buildingpermit. In a recentpublication, theDepartmentofEcologyexplainedwhat is needed to assess the cumulative effects of permit-exempt groundwater withdrawals. 

### See ANNWESSEL, DEP'T OF ECOLOGY, DRAFT: MITIGATION OPTIONS FOR THE IMPACTS OF NEW PERMIT-EXEMPT GROUNDWATER WITHDRAWALS 7-9 (2015).8 

### "To understand how exempt well consumptive water use translates into effects on streams at a local scale," one must consider multiple factors, including well density, hydrogeologic factors, distribution ofwells andwell depths withinthe subbasin, timing of withdrawals, difference in indoor and outdoor consumptive water use, and tangential hydrologic changes due to landscape changes. 

### Id. at 9. "To evaluate the effects of groundwater withdrawals on particular streams, some typeofgroundwatermodel istypicallyneeded. Ifonlyonegroundwaterwithdrawal is being analyzed, a simple analyticalprogrammay suffice." 

### Id. at 10. The cost of building these models canbe quite high. In a recent Court ofAppeals case, it was estimated that the cost ofthe "specific hydrogeological data and models [that] are needed for informed decisions about managing and allocating water use and

8 

### This publication, number 15-11-017, is available at http://www.ecy.wa.gov/programs/wr/wrac/images/pd£'15-11-017-reviewdraft.pdf[https://perma.cc/SAM2-88WK]. -17-

### Whatcom County, Hirst (Eric), etal. v. W. 

### Wash. GrowthMgmt. Hr'gsBd., 

### 91475-3 (Stephens, J. 

### Dissenting)
protecting surface flows in the Johns Creek basin" would be approximately $300,000. SquaxinIsland Tribe v. Dep 't

### of Ecology, 

### 177 Wn. App. 734, 738, 312 P.3d 766 (2013). Once funding was obtained, itwould take "at least two years to performthe study andto make its results useableto decision-makers." 

### Id. Furthermore, to best determine the effect ofany groundwater withdrawal, it 1s necessary to investigate the hydrogeology of all 

### connected surface and groundwaters. In a draft report discussing the appropriate technical methods for assessingtheeffects ofgroundwaterwithdrawals onsurfacewater, technicalexperts fromtheDepartmentofEcology statedthat "water-withdrawalproposals are always best evaluated in the context of an entire watershed. Therefore, the Committee recommends that tools and capacitybe developed for basin-scale analysis ofwater resources." DEP'T OF ECOLOGY, DRAFT: REPORT OF THE TECHNICAL ADVISORY COMMITTEE ON THE CAPTURE OF SURFACE WATER BY WELLS ES-7 (1998).9 The committee found that "the area ofinvestigation for capture analysis must be large enoughthat 100% ofthe capture for a well orgroup ofwells canbe accounted for; this mayonly extendto thenearest surface water, butmore oftenextends out ...to the boundaries of the groundwater basin and, sometimes, beyond into adjoining

9 

### This publication, number WR-98-154, is available at https://fortress.wa.gov/ecy/ publications/documents/98154.pdf[https:/ /perma.cc/JS6H-S3DX].

-18-

### Whatcom County, Hirst (Eric), etal. v. 

### W. Wash. GrowthMgmt. Hr'gsBd., 

### 91475-3 (Stephens, J. Dissenting)

basins." 

### ld. at 33. The committeerecognizedthat "[a]ppropriate analysis and data collection
... requires extensive effort, particularlyif, as is frequently the case, the capture analysis is done without the benefit of previously developed base information on a basin's hydrogeology." 

### ld. Given the complex nature of groundwater and surface water interaction, the majority's conclusion that RCW 19.27.097requires individual applicantsto showno impairmentwill effectivelyhalt local departments from grantingbuildingpermits. The majority's holding pushes a massive, and likelyinsurmountable, burden onto individuals applying for abuildingpermit. Thiswasnotthelegislature'sintent when it enacted RCW 19.27.097. 10 

### The exemption for small withdrawals of

10

### See

### Richard L. 

### Settle & 

### Charles G. Gavigan, The GrowthManagementRevolution in Washington: Past, Present, andFuture, 

### 16

### U. PUGET SOUND L.

### REV. 867, 881-96 (1993) (recountingfull legislativehistory). Relevanthereis thatatthetimethelegislature enacted RCW 19.27.097, it considered eliminating pennit-exempt wells. The original Engrossed Substitute House Bill 2929 included a provision that removed the exemption; required those who wantedto constmct apreviouslypermit-exemptwellto providetheDepartment of Ecology with 60 days' notice; allowed the Department ofEcology to require those wishing to construct a formerly exempt well "to apply for a water rightpermit ifthe area within which the withdrawal would occur is lmown or believedto have problems related to water availability, water quality, interferencewith existingwaterrights, or otherrelated problems which could be adversely affectedby additional withdrawals ofground water"; and allowedthe Department ofEcologyto deny thepermit "ifwateris not available, ifthe use is not abeneficialuse, ifthe usewould adversely affectexistingwaterrights, iftheuse wouldthreatenwaterquality oriftheuse wouldbeinconsistentwithalocalcomprehensive plan." ENGROSSED SUBSTITUTEH.B. 2929, at 54-55, 51st Leg., Reg. Sess. (Wash. 1990). The senate amended the bill, removing these provisions. S. AMEND. ENGROSSED SUBSTITUTEH.B. 2929, 51st Leg., Reg. Sess. (Wash. 1990). After significant debate, see 

### -19-

### Whatcom County, Hirst (Eric), etal. v. W: Wash. GrowthMgmt. Hr'gs Ed., 

### 91475-3 (Stephens, J. Dissenting)


### groundwaterhas "two evidentandinterrelatedpurposes: (1)to savethe appropriator ofa very small withdrawal the trouble and expense ofapplying for a permit where the effect ofthe withdrawal would be very slight; (2) to save the state the trouble and expense ofprocessing applications for small withdrawals with little impact on the total water available." 1997 Op. Att'y Gen. No. 6, at 6. Requiring individual building permit applicants to show that their small withdrawal ofwater will not impair seniorrightsundermines bothofthese goals. A far more sensible approach is to recognize that RCW 19.27.097 requires applicants to show only that sufficient water is factually adequate to support the proposedbuilding, and that it is permissible for the county's regulations to follow theDepartment ofEcology'sNooksackRule. ThisholdingisconsistentwithGMA regulations and with the WRA. See 

### WAC 365-196-825(3) ("Ifthe department of ecologyhas adoptedrules onthis subject [adequatepotablewater], oranypartofit, local regulations should be consistent with those rules. Such rules may include instream flow rules
...."); RCW 90.54.040 (requiring the Department ofEcology to develop and implement a comprehensive water resources program). It is also consistentwithKittitas County, 

### in which we stated thatthe Department ofEcology

Settle & 

### Gavigan,

### supra, at 886-87, thebill that wasultimately signedbythe governordid notcontaintheseprovisions. 

### See LAWS OF 

### 1990, 1stEx. Sess., ch. 17. -20-

### Whatcom County, Hirst (Eric), eta!. v. 

### W. Wash. GrowthMgmt. Hr'gsBd., 

### 91475-3 (Stephens, J. Dissenting)


### "ought to assist counties in their land use planning to adequately protect water resources," and maintained its role as the administrator ofwater appropriations. Kittitas County, 

### 172 Wn.2d at 180; see also Almgren v. Dep 't of Ecology, 

### No. 11- 109c, 2014 WL 3700692, at *7 (Wash. Pollution Control Hr'gs Bd. July 1, 2014) ("to make these decisions [concerning water availabilityinlandusepermitting], the local governmentrelies on information and expertise from other agencies including from Ecology." (citingKittitas County, 

### 172Wn.2d at 178)). I 

### would hold that the county's code is consistent with RCW 19.27.097 and properly incorporates the Department of Ecology's Nooksack Rule. Thus, the county complied with GMA 

### requirements to protect water. Because the majority holds otherwise, I 

### respectfully dissent.

-21-

### Whatcom County, Hirst (Eric), etal. v. 

### W. Wash. GrowthMgmt. Hr'gsBd., 91475-3 (Stephens, 

### J. Dissenting)**~** 22**~**